With a Much-Anticipated Fusion GPS Witness, Andrew DeFilippis Bangs the Table

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Andrew DeFilippis has done several arguably unethical things in an attempt to win the Michael Sussmann trial.

He repeatedly attempted to get Marc Elias to repeat something Elias shouldn’t have said in the first place: that the only way to understand whether Sussmann had gone to the FBI to benefit the Hillary campaign would be to ask him (in response to which stunt Sussmann is asking for a mistrial).

DeFilippis also set up a ploy to get a non-expert to offer opinions that only an expert should offer (more on that later).

At times (such as during Neustar employee Steve DeJong’s testimony), DeFilippis seemed more focused on eliciting testimony that might help him make a case against Rodney Joffe than obtain a guilty verdict against Sussmann.

And in direct examination yesterday of Fusion’s Laura Seago (my reading of the transcript is here), he did both, violating Judge Cooper’s orders in an attempt to set up his ongoing investigation in a way that did nothing to help him win the trial against Sussmann.

For all the anticipation for it, Seago’s testimony was not all that helpful to Durham’s team. She described having about as much awareness of which Democratic entity Fusion’s ultimately client was as the FBI did on Carter Page’s FISA applications. She indicated that the Alfa Bank allegations were just one of a whole bunch of possible ties to Russia that Trump had. She described how, to the extent Fusion could assess the Alfa Bank allegations, they found them credible. In discussing Fusion’s pitch to Franklin Foer on the Alfa Bank story, she described the other major data scientists who had backed the Alfa Bank allegations, identities that Durham has always suppressed because they kill his conspiracy theory.

Q. And what was discussed? What did you say, and what did they say?

A. I really don’t remember the specifics six years on. We talked about the allegations between the Trump organization and Alfa-Bank. We talked about highly credible computer scientists who seemed to think that these allegations were credible.

Q. And by that, are you referring to Mr. Joffe or somebody else?

A. There were others that ended up being cited in Mr. Foer’s article. He cited L. Jean Camp and Paul Vixie, who invented the DNS system.

During cross-examination by Sussmann lawyer Sean Berkowitz, Seago made it clear she didn’t tell Foer about the FBI investigation into these matters.

Q. And with respect to your meeting with Mr. Foer, did you tell Mr. Foer that the FBI was investigating these allegations?

A. No. I had no knowledge of that investigation.

Q. So before your meeting with Franklin Foer, did you have any information that the FBI was involved in any way?

A. No.

Q. All right. Did Mr. Fritsch or anyone else at the meeting say, “The FBI is looking into this”?

A. Not that I can remember.

Also on cross, Seago described that her impression from having dealt with Joffe is that he really did believe the allegations too.

Q. And your impression of Mr. Joffe that was made at that meeting was that he was — he seemed reliable?

A. Yes.

Q. And he seemed well-placed to have knowledge and information about the server issues?

A. Yes, he did.

Q. And you understood that Mr. Joffe supported the suggestion that there was at least potential contact between Trump servers and Alfa-Bank servers?

A. Yes, I did.

MR. DeFILIPPIS: Objection, Your Honor.

THE COURT: Overruled.

Q. You answered the question?

A. Yes, I did understand that.

But it was in DeFilippis’ treatment of emails that Judge Cooper granted Durham’s team access to, but did not permit them to use at trial, where he got particularly obnoxious. Remember: while Durham’s team maintained from the start that the privilege claims behind these emails were not proper (because they were largely about communicating with the press, not about providing research assistance to the Democrats), the reason they didn’t get access to them was their own incompetence. They didn’t ask for a privilege review until right before trial.

DeFilippis has no one to blame but himself, but in true right wing fashion, he’s lashing out.

Perhaps in an attempt to make some drama out of documents that Cooper described “not very revelatory,” DeFilippis walked Seago through all the ones she was privy to, including those with Joffe that Cooper ruled were privileged.

Generally, such exchanges went something like this:

Q. Ms. Seago, does this appear to be part of the same chain as the prior email exchanges?

A. It has the same “Subject” line and says “Re,” so that is what it appears to be. I have no independent recollection of this email.

Q. And what, if any, connection in your mind did the Alfa Bank issue have to New York? I ask because “New York” is in the “Subject” line. Any sense?

A. I don’t know.

Q. And the attachment on this email, any sense of what that was?

A. I don’t know.

Note: there’s no reason to believe Seago has reviewed these emails recently.

That was all setup for DeFilippis’ last set of questions:

Q. Did you ever receive instructions that you couldn’t disclose your affiliation with Fusion GPS to the media?

A. No. I don’t remember hiding that affiliation from the media ever.

Q. Do you ever remember hiding or considering hiding that affiliation from anyone?

A. No.

Q. How certain are you of that?

A. I’m quite certain. You know, we don’t go around advertising who we are and where we work, but I certainly don’t lie to people, and I don’t lie to the press about where I work.

Q. Okay. So you’re fairly certain you never sought to conceal that?

A. Not that I can recall.

Immediately after Seago left the stand, DeFilippis asked for a bench conference (the DC Court adopted phones for the purpose during COVID and all the judges love them, so they’re keeping them). Seago’s answer to the question, DeFilippis noted, was inconsistent with the content of the email, which referenced Tea Leaves.

MR. DeFILIPPIS: Your Honor, could we speak to you on the phone?

THE COURT: Excuse me?

MR. DeFILIPPIS: Could we speak to you on the phone?

THE COURT: Yes. (The following is a bench conference outside the hearing of the jury)

MR. DeFILIPPIS: Your Honor, can you hear me now?

THE COURT: Yes.

MR. DeFILIPPIS: So we have an issue with regard to Ms. Seago’s testimony. The government followed carefully Your Honor’s order with regard to the Fusion emails that were determined not to be privileged but that the government had moved on.

As Your Honor may recall, there was an email in there in which Ms. Seago talks very explicitly about seeking to approach someone associated with the Alfa-Bank matter and concealing her affiliation with Fusion in the email. When we asked her broadly whether she ever did that, she definitively said no when I, you know, revisited it with her. So it raises the prospect that she may be giving false testimony.

And so we were — you know, I considered trying to refresh her with that, but I didn’t understand that to be in line with Your Honor’s ruling. So the government is — we’d like to consider whether we should be — we’d like Your Honor to consider whether we should be able to at least recall her and refresh her with that document?

THE COURT: I don’t remember that question, but the subject matter was concealing Fusion or her identities in conversations with the press. If I recall correctly, that email related to “tea leaves,” correct?

MR. DeFILIPPIS: Your Honor, I thought I had phrased it more broadly. We can go to the transcript.

THE COURT: Mr. Berkowitz?

MR. BERKOWITZ: Judge, I’m not familiar with the specifics. I’m happy to take a look at the transcript. I certainly got the impression he was asking if she had ever concealed Fusion as an entity from the press. That was what was asked in her deposition, and she answered the same way in her deposition. One thing, just to note, some of our paralegals can hear Mr. DeFilippis talking, so I suggest, just as a reminder, to keep your voices down.

MR. DeFILIPPIS: Sure, sure.

THE COURT: All right. Let me look at the transcript.

(Pause)

THE COURT: Can you hear me?

MR. DeFILIPPIS: Yes, Your Honor.

THE COURT: All right. Looking at the transcript, I think you did ask a more open-ended question. She said, “I don’t remember hiding that affiliation from the media ever.” And then you followed up, “Do you ever remember hiding or considering hiding that affiliation from anyone?” And she answered, “No.” I would — so I think that she — I think the email is inconsistent with her answer, Mr. Berkowitz. But the question now is whether they can refresh her with that email notwithstanding the Court’s order. And now she’s gone.

How are we going to do that even if we were to allow it? Is it worth the candle of calling her back?

MR. DeFILIPPIS: Your Honor, I understand she’s still in the building.

MR. BERKOWITZ: Your Honor, is this email privileged?

MR. DeFILIPPIS: This was one of the emails that was determined not to be privileged by Your Honor.

MR. BERKOWITZ: So why didn’t they impeach her with it when they had the chance?

MR. DeFILIPPIS: Your Honor, the reason is because I didn’t want to violate Your Honor’s order that we couldn’t use those affirmatively.

THE COURT: Well, I think the time to have asked the Court whether using the document to refresh was consistent with the order was before she was tendered and dismissed. So I think you waived your opportunity. All right? So we’re going to move on.

Frankly, I think using the formerly privileged emails to impeach was beyond the scope of Cooper’s order, too. This was an affirmative use of the email!

But this was nothing more than a perjury trap, and with it an attempt to get the content of the email DeFilippis had been prohibited from using before the jury. Cooper didn’t allow it in, though he shouldn’t have allowed that line of questions in either (had such questions been permitted, then Seago should have been permitted to refresh her own memory of them).

Probably, DeFilippis will consider charging her with perjury over this. I think the fact that both Judge Cooper and Berkowitz had the impression that the question pertained solely to outreach to the press, Seago’s reiteration that, “I don’t lie to the press about where I work,” reinforcing that understanding, plus her last minute caveat, “Not that I can recall,” would make such a case as flimsy as this one. Probably, DeFilippis will use this exchange as part of his bid to get access to some subset of the 1,500 other not very revelatory emails that Democrats have claimed privilege over.

But this was a stunt. It wasn’t about getting, or sharing, the truth with the jury (and any scenario in which I can imagine Seago trying to hide her identity with Tea Leaves would suggest a more distant relationship than even I imagined Fusion had, though I would love to know what it was).

When a prosecutor engages in as many stunts as DeFilippis has, it’s a confession he knows the facts are not on his side.

The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

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The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively Read more →

ACA at SCOTUS: Some Thoughts On The Mandate

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As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it Read more →

NY Times Admits Gruber Problem, Fails To Mention Krugman Problem

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imagesIn a full throated mea culpa by the New York Times Public Editor, Clark Hoyt, appearing in the Sunday edition, the Times officially describes the critical and material implications that arise when readers are misled by undisclosed interests of sources and authors in their paper of record.

These examples have resulted in five embarrassing editors’ notes in the last two months — two of them last week — each of them saying readers should have been informed of the undisclosed interest. And on Thursday, the standards editor sent Times journalists a memo urging them to be “constantly alert” to the outside interests of expert sources. The cases raised timeless issues for journalists and sources about what readers have a right to know and whose responsibility it is to find it out or disclose it.

That is exactly right. One of the prime examples the Times’ Public Editor bases his proper conclusion on is that of Jonathan Gruber:

Jonathan Gruber, a prominent M.I.T. health economist, wrote an Op-Ed column and was quoted frequently in other Times columns, news articles and blogs on health care reform before it came to light that he had a contract worth nearly $400,000 to analyze health proposals for the Obama administration.

….

Gruber, the health care economist, wrote an Op-Ed column in July supporting an excise tax on so-called Cadillac health plans. Not long before, he had signed a contract with the Department of Health and Human Services to analyze the economic impact of various health care proposals in Congress. He did not tell Op-Ed editors, nor was the contract mentioned on at least 12 other occasions when he was quoted in The Times after he was consulting for the administration. After a blogger reported on Gruber’s government contract on the Daily Kos Web site, Gruber did volunteer it to Steven Greenhouse, a Times reporter interviewing him for an article on the excise tax. Greenhouse said he included the fact in a draft but struck it because the article was too long. Greenhouse said that Gruber’s views on the tax were so well-known that he did not think they would be influenced by a consulting contract. But had he realized how large the contract was, Greenhouse said, “I would have stood up and paid lots more attention.”

While it is nice the Times has admitted its problem with Gruber, and his wantonly serial failure to disclose material facts and appearances of conflict, it is extremely curious and convenient they dodge the most recent, and in many regards most glaring, example of their damage from Gruber’s Read more →

Marcy Wheeler TeeVee – Jonathan Gruber and the Cadillac Plan

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There has been a fair amount of misinformation and disinformation about what has been said by Marcy Wheeler on this blog about Jonathan Gruber, his modeling work on healthcare and relationship with the Obama Administration. One instance in this regard, quite unfortunately, was notably made by Paul Krugman. Mr. Krugman, who is a solid liberal voice and worthy of respect, nevertheless very unfairly tarred Marcy with complaints he had, or perceived, with others and he owes better.

First off, I would like to point out the matter of Gruber started primarily about the duty and obligation of disclosure, and there was, unequivocally, a failure in full disclosure by both Mr. Gruber and the White House, both relying on his work (inferring that it was independent), and simultaneously funding it, whether directly or indirectly. For Mr. Krugman to extrapolate that out to being “just like the right-wingers with their endless supply of fake scandals” was startling and beyond the pale. There was also no foundation for it from Marcy’s words and statements on this blog.

The foregoing is something that I, bmaz, felt compelled to say; if you disagree, then your beef is with me, not Marcy, not Firedoglake, nor anybody else. Now, with that said, I wish to present Marcy Wheeler and let her speak for herself about exactly what the Gruber matter is about, and what it means. The attached video clip is from a MSNBC interview of Marcy conducted by David Shuster Tuesday morning.

It should be noted that Marcy was covering the North American International Auto show in Detroit when MSNBC interviewed her, as David Shuster notes. What David didn’t catch was that, the whole time he was discussing the infamous “Cadillac tax” Mr. Gruber’s work is central to, Marcy was standing in front of the Cadillac display. Now that is product placement!

Interestingly enough, in discussing the Cadillac tax, Paul Krugman has flat out admitted the claims of insurance premium reductions leading to wage increases are “exaggerated” and that “Cadillac plans aren’t really luxurious — they reflect genuinely high costs.” Mr. Krugman might want to take a look at the most recent work by Larry Mishel, an economist Mr. Krugman has cited before; in fact the exact economist Paul cited as support for the fact that the wage growth claims were “exaggerated”. Mr. Mishel’s new article seems to undercut the entire Cadillac tax thesis as to wage movement.

UPDATE: Economist Larry Mishel, who was linked to in the main post and referred to with seeming approval by Paul Krugman as well (link to that also in main post) put the following in a comment to his FDL Seminal Post yesterday:

I do think Gruber’s claim about the wage impact of lower health care inflation in the 1990s (and the reverse trends in the 200s) was wrong: The simple tale seemed to support his policy desire to curtail health care costs via the excise tax but digging into the details shows that health care costs have not driven wage trends. This does not mean that lower health care costs might not lead to better wages, just that the scale of the impact won’t move wages appreciably.

I may differ with many of you on the site though in that I don’t impugn Gruber’s motives. I don’t think there’s much of a scandal regarding his contract with HHS. I think his error in the case I’m criticizing is that he’s a health care economist and doesn’t know the details about wage trends. I, on the other hand, have been studying wages for thirty years or more. Gruber clearly over-reached with the argument about health care driving wage trends and has acknowledged that to me privately (yesterday).

So, I think he’s wrong on this issue and I also disagree with him on the overall merits of the health excise tax. But I think he’s a pretty smart, reasonable and straightforward economist. I’ve had to debate some pretty scummy economists and he’s not one of them. (emphasis added)

I agree with Mr. Mishel about the absence of malice by Mr. Gruber. But malice was never ascribed by Marcy Wheeler, she merely pointed out that there was a simple failure to fully disclose potential conflict information, that others had an interest in knowing, and that the assumptions Mr. Gruber’s model was based on may not be correct. These points have been borne out by others, indeed effectively by Paul Krugman himself and other experts he relies on. The tarring that occurred from Paul should be retracted.

Late Night: Max Tax Baucchanal Grabs The Dental Floss

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There seems to be no end to the duplicitous clean livers that are hiding cirrhotic private lives and peccadillos. Now, if you ask me, no one should be all that shocked Tiger Woods prowls like a big cat. He has been known to feel a kinship and run with Michael Jordan and Charles Barkley pretty much since he left Stanford for the bright lights and big city attractions of the PGA traveling circus. Tiger didn’t want to be like Mike, he already was like Mike. The “right stuff” that makes the greatest athletes stand out above the mere all stars and all pros generally comes with a healthy quotient of carnivore like killer instinct and desire.

But the discovery that a holier than thou condescending family values prairie dweeb like Max Baucus (R-Dentalflossville) is footing the shack up of his latest shag, well that is a whole nuther thing. Who knew Max chased the skirts and dental floss just like those hedonists in California? And considering the Max Tax concubine was, at least for a while, one of his staffers, there is of course some relief it was not an intern. So he has got that going for him I guess.

Before the moment that is the Passion Of Max fleets from memory though, let the proletariat he arrogantly betrays daily in his day job as an elected representative of the people, nation and the collective interest not be lost as to the real upshot. But lost it will be if left up to the puerile panty sniffers in the main stream political media. For instance those deer hunting manly men over at Politico have two stories on their front page (here and here) on the Max Tax plan to boost his squeeze with an elite appointment to a coveted US Attorney position and, yet, not one mention of the hypocrisy exhibited by the revelation as framed against the Baucus constant braying for fiscal responsibility and reticence to provide a health care bill covering women equally and fairly. Go figure.

As an extra Late Night bonus, check out this story of the evil terrorist Christmas elf:

A man dressed as an elf is jailed after police in Georgia say he told a mall Santa that he was carrying dynamite.

Police say Southlake Mall in suburban Atlanta was evacuated but no explosives were found.
…
Police say Caldwell got in line Wednesday evening to have his picture taken with Santa Claus.

Police say when Caldwell reached the front of the line, he told Santa he had dynamite in his bag. Santa called mall security and Caldwell was arrested.

Caldwell faces several charges, including having hoax devices and making terrorist threats.

Awesome.

Pay2Play Ceci: “The Most Influential Players” Love MaxTax

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Pay2Play Ceci Connolly has an article out summing up the reaction she’s seeing to Max Baucus’ health care plan:

As they scoured the 223-page document, many of the most influential players found elements to dislike, but not necessarily reasons to kill the effort. Most enticing was the prospect of 30 million new customers.

In order of appearance, here are the people she cites in her article (I’ve bolded the ones she has actual quotes from):

  • Max Baucus
  • Obama
  • Liberal Democrats and allies, particularly labor unions
  • Republicans
  • Major industry leaders and interest groups
  • White House strategists
  • Obama
  • John D. Rockefeller
  • Lawmakers and lobbyists
  • Ron Wyden
  • Neil Trautwein, a vice president of the National Retail Federation
  • Leaders of the Business Roundtable and the National Federation of Independent Business
  • Drugmakers and hospitals
  • Kenneth E. Thorpe, an Emory University professor and Clinton administration official (noting that health care providers stand to make more than they’ll lose)
  • Max Baucus
  • Several trade associations
  • The medical device industry (dsecribed "recruiting" four senators to roll back fees on its industry)
  • One White House aide

In all, Ceci presents a landscape in which the most important players–aside from two Senators who have been slighted in the process thus far–are trade industry groups. And the most important issue for them is the profit they stand to make off of taxing America’s middle class to make them wealthier.

Now, to be fair to Pay2Play Ceci, that’s unashamedly the point of her article–that while the bill has pissed off Democrats and Republicans, it has thus far lulled the industry with dreams of forthcoming riches.

But behind the rhetorical fireworks was a sense that the fragile coalition of major industry leaders and interest groups central to refashioning the nation’s $2.5 trillion health-care system remains intact.

And also to be fair to Pay2Play Ceci, it’s clear that these players were the prime movers behind this bill. The story is absolutely accurate–though that doesn’t mean it has any business being told.

Nothing demonstrates the degree to which actual politicians–much less their constituents–have become mere bystanders as the health care industry crafts up a plan to get 30 million new captive customers.

One more point on this (so I can count this as my daily thrashing of the WaPo). An article like this is the natural outcome of the WaPo’s attempt to be a broker of the key players (not surprisingly, the same industry hacks highlighted here) in the health care debate. Read more →

CBO on Co-Ops

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Ezra has posted the CBO’s initial estimates on the costs of MaxTax–some of the assumptions for which seem to pretend that insurance companies will not react in any way to the new rules imposed by MaxTax.

But before I get into what CBO’s assumptions, here’s what CBO thinks of Baucus’ crappy co-op option.

(The proposed co-ops had very little effect on the estimates of total enrollment in the exchanges or federal costs because, as they are described in the specifications, they seem unlikely to establish a significant market presence in many areas of the country or to noticeably affect federal subsidy payments.)

That is, as designed, the co-ops would not be more attractive than the private insurance options, nor would they bring down subsidies (which means they wouldn’t bring down costs to us, either).

As designed, the co-ops are totally worthless.

The REAL Worst Policy in the Bill

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Ezra continues to claim that the worst employer incentive in MaxTax is the way it fines employers for not covering employees.

Max Baucus’s bill retains the noxious "free rider" provision on employers. Rather than a simple employer mandate that forces every employer over a certain size to provide health-care insurance or pay a small fee, the free rider approach penalizes employers $400 for hiring low-income workers who are eligible for subsidies.

[snip]

This isn’t just the worst policy in the bill. It’s one of the worst policy ideas I’ve ever seen. It creates a huge incentive to build a workforce that entirely excludes low-income workers.

Now before we get into whether this really is the worst incentive or not, let me correct something Ezra said. He said:

The employer doesn’t just pay $400 per low-income employee. He pays "$400 multiplied by the total number of employees at the firm (regardless of how many are receiving the state exchange credit)." The bill actually gives an example of how this works: Employer A has 100 employees and does not offer health-care coverage. Thirty of the employees receive subsidies on the exchange. Employer A doesn’t pay $400 x 30 employees, but $400 x 100 employees, for a total of $40,000. 

But that’s not what the MaxTax does or says. Here’s what MaxTax says [update: Ezra has now amended his post to reflect this difference.]

The employer would pay the lesser of the flat dollar amount multiplied by the number of employees receiving a tax credit or a fee of $400 per employee paid on its total number of employees.

For example, Employer A, who does not offer health coverage, has 100 employees, 30 of whom receive a tax credit for enrolling in a state exchange offered plan. If the flat dollar amount set by the Secretary of HHS for that year is $3,000, Employer A should owe $90,000. Since the maximum amount an employer must pay per year is limited to $400 multiplied by the total number of employees (for Employer A, 100), however, Employer A must pay only $40,000 (the lesser of the $40,000 maximum and the $90,000 calculated fee). [my emphasis]

So Ezra’s (and Baucus’) hypothetical employer would pay just $40,000. But say Employer B had just 5 employees who were subsidized, out of the same 100 employee firm. Employer B would pay $15,000, which brings it closer to the costs an employer might incur trying to preferentially hire an employee who might already have health care.

Ezra’s point still holds–to a degree. Both employers have an incentive to avoid hiring low income workers for whom they might be fined.

Read more →