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Pat Cipollone Believes the Golden Rule Is for Chumps

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The question and answer phrase of the Senate trial is far more interesting than the presentation of the cases. Both parties are obviously feeding their own side questions to rebut the other, or posing questions they think will make the other stumble (Chief Justice John Roberts has reportedly censored only one kind of question: any question that probes for the whistleblower’s name).

Later last night, the questioning became interesting for the whip count. There were a couple of questions posed by large numbers of Senators on record supporting Trump, including vulnerable swing state Senators like Martha McSally, Thom Tillis, and Cory Gardner, and it was interesting to see who else jumped on questions that obviously served only to suck up to Trump.

Over the course of several questions, there was a discussion on whether Roberts could rule on the appropriateness of witnesses or Executive Privilege. Pat Philbin argued that he could not, on EP (contrary to the rules), in response to which Schiff came back and said he could. Schiff argued that the Democrats would accept Roberts’ views without challenge. Jay Sekulow piped in to say Republicans would not. I keep thinking about how Roberts will be ruling on some of these issues on other appeals, and I think Schiff is playing to him on some questions as much as to the Senate.

Questions being asked by leaners (people like Lisa Murkowski and Susan Collins, who have asked a number together, though it seems like Mitt Romney went from leaning to supporting questions) are of particular interest. At one point, Collins asked why the House didn’t include bribery in its articles. Hakeem Jeffries gave an answer that Collins visibly responded to by saying, “he didn’t answer my question,” but Schiff came in shortly after and did answer it, pointing out that all the elements of bribery are included in the abuse of power article. Collins also asked the President’s lawyers what Trump had done on corruption in Ukraine prior to last year, which Philbin didn’t answer and then, when the question was re-asked by Democrats, said he couldn’t answer because it’s not in the record (though he has relied on non-public information elsewhere).

Then there are the alarming answers. Alan Dershowitz was asked, after he argued that if the President thought something that benefitted him personally was good for the country, whether that extended to nuking democratic states because he believed his reelection was good for the country and he agreed in theory.

Pat Philbin answered a question about whether it was okay to accept dirt to win an election. He said it was.

I was most interested, however, in a response Sekulow gave to a question offered by Marco Rubio and others, people who presumably were just feeding softballs to strengthen the President’s argument. They referenced a claimed principle espoused by Dersh and Sekulow, wherein you should always imagine how it would feel if the other party were impeaching a president of your party on the same fact set, which was originally a way to excuse Dersh’s flip-flop on abuse of power and impeachment. Rubio and others asked where the limiting factors on this would be — basically an invitation to repeat what Trump’s lawyers have said in the past, that you shouldn’t impeach within a year of an election or some such thing. Except Sekulow would not offer general principles. Instead of referencing the election — the right answer to the softball question — he focused on the claimed uniqueness of this impeachment (which is bullshit in any case). In other words, given an opportunity to answer a question about principles that would adhere beyond this impeachment, Sekulow answered that his Golden Rule only applies ot this impeachment.

Impeachment = Grounds for Firing

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You’d think we were all in Newfoundland buried beneath multiple feet of snow given the blizzard of bullshit Trump and his reality TV cast have been spewing.

Like this idiocy on Twitter:

Many have speculated that Trump can’t read; the above tweet is one more piece of evidence in their favor, because he’s clearly not read the rather simple Articles of Impeachment.

He can read because in addition to typing stupid tweets he manages to scratch out legible crap on paper using a Sharpie pen, writ large enough that passing cameras can read it.

Like this piece of brilliance snapped on November 20:

[Photo: Mark Wilson, Getty Photos]

Sure, we believe you, big guy. You didn’t want a quid pro quo BUT you told Zelensky you want him to “do the right thing,” leaving the possibility of future cooperation hanging in the air and $35 million in U.S. aid allocated by Congress still undelivered the day before this note was Sharpied.

Not bribery. Not extortive at all, with hundreds of Ukraine’s citizens dying due to Russian aggression.

But Trump’s ethically-challenged brain trust has his back, issuing a letter rebutting the House’s impeachment. They claim he can’t be impeached because [—enter bullshit excuse du jour—].

Like Alan Dershowitz’s ridiculous claim that Trump didn’t do anything illegal and therefore can’t be impeached.

I pity every student Dershowitz ever taught; the credibility of their credits earned has been thrown into question now that Dershowitz has decided to backpedal on his positions held back in the 1990s when lying to Congress about a consensual blowjob was an impeachable offense.

One of the arguments consistently made by Trump, his consent-challenged attorneys, and the right-wing monkey horde is that impeachment nullifies the 2016 election.

Putting aside the legitimacy of an election questionably won with foreign interference he solicited right in front of the American public on camera, impeachment isn’t a criminal prosecution. It’s a Constitutional act by which the people through their representatives indict the president for “Treason, Bribery, or other high Crimes and Misdemeanors” — it’s not a nullification.

Can’t believe I’m actually posting anything by Cato Institute, but this fairly brief explainer is straightforward:

Using the power it alone possesses,the House of Representatives impeached Trump for high crimes and misdemeanors consisting of abuse of office and obstruction of Congress.

In Trump’s abuse of office he acted illegally; these acts may yet be prosecuted once he leaves office if they are still within statue of limitations:

There may be more illegal acts upon further investigation. We still don’t have all the details about the threat to former ambassador Marie Yovanovitch, for example.

The illegal acts themselves are not laid out in the Articles of Impeachment, offering instead only the high-level assessment that Trump invited foreign interference in the 2020 election for his own personal gain while damaging U.S. national security interests and in violation of his oath to faithfully execute the law. He obstructed Congress as they investigated his abuse of office.

The House was too kind by half, sparing him a detailed recitation of his illegal behaviors within the Articles.

A conviction by the Senate — unlikely as it is because its GOP majority is hapless and nearly as corrupt as Trump — won’t nullify the 2016 election. It would result in succession by Vice President Mike Pence, acknowledging both the election and the established order of succession.

And it would tell Trump what he truly deserves to hear for failing to do his job, that of faithful execution of this country’s laws, upholding the Constitution.

It’s a pity Trump and his legal minions refuse to accept the House has found ample grounds to tell Trump his work performance is unacceptable.

More than half of the U.S. don’t approve of Trump’s job performance as well. It’d be nice if the Senate GOP found a spine, convicted Trump, and told him in simple, familiar terms he knows all too well that he’s fired.

OPEN THREAD: Everything Else Not about Robert Mueller

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[Please check the byline, thanks. /~Rayne]

Though today will probably be nutzo with Mueller hearing content, we need a place to capture everything else going on.

Let me repeat: this is everything else NOT about Special Counsel Robert Mueller, the Special Counsel’s Office (SCO) investigation and resulting report which will be addressed in a House Judiciary Committee hearing today.

I’ll kick this off with a few things I’ve had on my desktop. Caution: may contain speculation.

~ ~ ~

This is tangential to the Special Counsel’s investigation, but not a direct part of it.

Former Trump campaign adviser George Nader, who testified before the SCO, may also be prosecuted in New York as well as by the feds in Virginia:

I don’t recommend reading the government’s motion opposing Nader’s release on bond linked in her thread unless you have a strong constitution. I couldn’t stomach it. Judge Leonie Brinkema denied his release, thank goodness.

Nader was indicted last Friday when charges filed in April 2018 related to transporting a minor in 2000 for the purposes of sex and for possession of child pornography were unsealed. The charges had remained sealed while Nader cooperated with the SCO investigation.

He had been arrested in early June at JFK International airport in New York when he returned after complications from heart surgery.

I assume whatever was found at JFK voided any immunity agreement, as well it should.

At some point we need a society-wide discussion about the confluence of men whose proclivities deny consent to those with less power. It’s this issue I want us to address — it’s entwined with the anti-democratic movement.

~ ~ ~

I really hate to think about Alan Dershowitz at all let alone about his sex life. But didn’t anybody notice the weird caveat last week when he spoke about his love life last week Thursday?

“I have had sex with one woman since the day I met Jeffrey Epstein. I challenge David Boies to say under oath that he’s only had sex with one woman during that same period of time. He has an abnormal amount of chutzpah to attack me and challenge my perfect, perfect sex life during the relevant period of time …”

This guy can play all kinds of word games, right? He parses like crazy. So why didn’t he say I’ve only had sex with my wife/life partner [insert her name because she’s a human being]?

And yet we know he’s admitted to receiving therapeutic massage at pedophile Jeffrey Epstein’s place. Was he prevaricating about the meaning of the word ‘sex’ as Bill Clinton once did?

Not kink shaming sex between consenting adults, but that’s my point — were any these ‘massages’ or not-sex-sex with some other person actually with a non-consenting human? Like a minor?

Really wonder if it would be beneficial to go through the body of Dershowitz’ work with an eye to his opinions with regard to consent by individuals with less power in a given situation.

~ ~ ~

Deutsche Bank (DB) is in a world of hurt. It’s trying to downsize and reorganize in a big fat hurry, expecting to shed as many as 18,000 jobs over the next 2-3 years.

It’s also clients and deposits, hemorrhaging nearly a billion dollars a day after the bank announced it was exiting prime brokerage.

Now DB is trying to shed a problematic client, Jeffrey Epstein, whose accounts are like a mythic hydra. Lop off the known accounts and a bunch more unknown pop up.

DB has submitted Suspicious Activity Reports a number of times on Epstein’s accounts’ transactions; while not all activity triggering a SAR may be illicit, this is Epstein we’re talking about.

Timing is also rather interesting — check this excerpt from the NYT:

In 2015 and 2016, anti-money laundering compliance officers in Deutsche Bank’s offices in New York and Jacksonville, Fla., raised a variety of concerns about the work the bank was doing with Mr. Epstein. The employees were concerned that the bank’s reputation could be harmed if it became public that Mr. Epstein was a client, according to the three people familiar with the relationship.

Huh. What an interesting overlap with the U.S. 2016 campaign season. This, too, was interesting:

In addition, the compliance officers on at least one occasion noticed potentially illegal activity in one of Mr. Epstein’s accounts, including transactions in which money was moving outside the United States, two of the people said. The compliance officers produced a so-called suspicious activity report, but it is unclear whether the report was ever filed with the Treasury Department’s financial-crimes division.

Despite the compliance officers’ misgivings, the bank continued to do extensive business with Mr. Epstein.

What’s the bottleneck? Did corruption inside DB prevent Epstein from being discovered earlier than last fall’s investigative reporting by the Miami Herald’s Julie K. Brown? Did any of these banking transactions mirror human trafficking transactions?

Will we ever know or will this all quietly go away?

~ ~ ~

There will be a separate post for the Mueller hearing today. Please take all Mueller hearing related content to that thread, thanks. This is an open thread.

Did The Most Senior White House Official Lie to the NYT about the Content of the Comey Firing Letter?

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One week after conducting a “surprise” interview set up by Trump ally Christopher Ruddy (for which he was widely criticized), Mike Schmidt has a widely hailed story describing the evidence supporting an obstruction charges against Donald Trump.

Or maybe against Attorney General Jeff Sessions.

Most interestingly, it suggests that several days after Trump attacked Jeff Sessions while watching Jim Comey’s May 3 testimony to Congress, Sessions sent an aide to Congress to try to gin up a series of damning stories about Comey.

White House aides gave updates to Mr. Trump throughout, informing him of Mr. Comey’s refusal to publicly clear him. Mr. Trump unloaded on Mr. Sessions, who was at the White House that day. He criticized him for recusing himself from the Russia investigation, questioned his loyalty, and said he wanted to get rid of Mr. Comey.

[snip]

Two days after Mr. Comey’s testimony, an aide to Mr. Sessions approached a Capitol Hill staff member asking whether the staffer had any derogatory information about the F.B.I. director. The attorney general wanted one negative article a day in the news media about Mr. Comey, according to a person with knowledge of the meeting.

A Justice Department spokeswoman said the incident did not occur. “This did not happen and would not happen,” said the spokeswoman, Sarah Isgur Flores. “Plain and simple.”

Hmmm. I don’t think Sessions has honored his recusal.

He may have also ordered up Rod Rosenstein to suggest Comey needed firing.

Earlier that day, Rod J. Rosenstein, the deputy attorney general, had pulled one of Mr. McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey.

The following weekend, Trump went to Bedminster to have Stephen Miller write up a letter firing Comey. It’s this detail I’m most interested in.

In interviews with The Times, White House officials have said the letter contained no references to Russia or the F.B.I.’s investigation. According to two people who have read it, however, the letter’s first sentence said the Russia investigation had been “fabricated and politically motivated.” [my emphasis]

Remember, Schmidt has just had a rather celebrated interview with one particular White House official. Er, The White House Official. Half of the off-the-record comments omitted from the NYT transcript of the interview clearly pertain to the Russian investigation.

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

[snip]

TRUMP: What I’ve done is, I have absolute right to do what I want to do with the Justice Department. But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.

_________

TRUMP: For purposes of the Justice Department, I watched Alan Dershowitz the other day, who by the way, says I, says this is a ridiculous —

SCHMIDT: He’s been very good to you.

TRUMP: He’s been amazing. And he’s a liberal Democrat. I don’t know him. He’s a liberal Democrat. I watched Alan Dershowitz the other day, he said, No. 1, there is no collusion, No. 2, collusion is not a crime, but even if it was a crime, there was no collusion. And he said that very strongly. He said there was no collusion. And he has studied this thing very closely. I’ve seen him a number of times. There is no collusion, and even if there was, it’s not a crime. But there’s no collusion. I don’t even say [inaudible]. I don’t even go that far.

_________

TRUMP: So for the purposes of what’s going on with this phony Russian deal, which, by the way, you’ve heard me say it, is only an excuse for losing an election that they should have won, because it’s very hard for a Republican to win the Electoral College. O.K.?

This last break in the transcript picks up right where the information these White House officials lying to the NYT leave off: with the claim that this is a “fabricated and politically motivated” investigation.

Particularly given that Schmidt has been working this aspect of the story for months, what are the chances that the most senior White House official lied to Schmidt about what he had written to justify firing Jim Comey?

“Facts Matter” Said NSA Yay-Man Michael Hayden Who Told Serial Lies about the Phone Dragnet

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I’m not sure if you saw last night’s Munk Debate pitting Glenn Greenwald and Alexis Ohanian against Michael Hayden and Alan Dershowitz. I did a whole slew of fact checking and mockery on twitter last night.

But I wanted to pay particular attention to a string of false claims Hayden made about the phone dragnet program.

First, my hobbyhorse, he claimed the database can only be used for terror. (After 1:08)

If this program — and here we’re talking about the metadata program — which is about terrorism, because the only reason you can use the metadata is to stop terrorism. No other purpose.

Actually, terrorism and … Iranian “terrorism.” It’s unclear when or why or how Iran got included in database access (though it is considered a state sponsor of terror). But according to Dianne Feinstein and Keith Alexander, analysts can also access the database for Iran-related information. Now, maybe they can only access the Iran data if they claim terror. But that’s a very different thing than claiming a tie to al Qaeda.

The real doozies come later (my transcription; after 1:20:40; I’ve numbered the false claims and provided the “facts matter” below).

I started out with facts matter. So I assume on the metadata issue we’re talking about the 215 program. About the phone records, alright? Because frankly, that’s the only bulk metadata NSA has on American citizens. (1)

[cross talk]

Accusations fit on a bumper sticker. The truth takes longer. NSA gets from American telephone providers the billing records of American citizens. (2) What happens to the billing records is actually really important. I didn’t make this phrase up but I’m gonna use it. They put it in a lock box, alright? They put it in a lock box at NSA. (3) 22 people at NSA are allowed to access that lockbox. (4) The only thing NSA is allowed to do with that truly gajillion record field sitting there is that when they have what’s called a seed number, a seed number about which they have reasonable articulable suspicion that that seed number is affiliated with al Qaeda — you roll up a safe house in Yay-Man, he’s got pocket litter, that says here’s his al Qaeda membership card, he’s got a phone you’ve never seen before. Gee, I wonder how this phone might be associated with any threats in the United States. (5) So, I’ll be a little cartoonish about this, NSA gets to walk up to the transom and yell through the transom and say hey, anybody talk to this number I just found in Yay-Man? And then, this number, say in Buffalo, says well, yeah, I call him about every Thursday. NSA then gets to say okay Buffalo number — by the way, number, not name — Buffalo number, who did you call. At which point, by description the 215 metadata program is over. That’s all NSA is allowed to do with the data. There is no data mining, there’s no powerful algorithms chugging through it, trying to imagine relationships. (6)   It’s did that dirty number call someone in the United States. The last year for which NSA had full records is 2012 — I’ll get the 13 numbers shortly (7) — but in 2012, NSA walked up to that transom and yelled “hey! anybody talk to this number?” 288 times. (8)

(1) Under the SPCMA authority, NSA can include US persons in contact-chaining of both phone and Internet metadata collected overseas. SPCMA has far fewer of the dissemination and subject matter limitations that the Section 215 dragnet has.

(2) NSA doesn’t get the “billing records.” It gets routing information, which includes a great deal of data (such as the cell phone and SIM card ID and telecom routing information) that wouldn’t be included on a phone bill, even assuming a bill was itemized at all (most local landline calls are not). It also gets the data every day, not every month, like a billing record.

(3) Starting in early January 2008, NSA made a copy of the dragnet data and “for the purposes of analytical efficiency” dumped it in with all their other metadata. That allows them to conduct “federated queries,” which is contact chaining across authorities (so chains including both foreign collected EO12333 data and domestic Section 215 data). The NSA coaches its analysts to rerun queries that are replicable in EO12333 alone because of the greater dissemination that permits.

(4) The 22 number refers to the people who can approve an identifier for Reasonable Articulable Suspicion, not the people who can conduct queries. Those 22 are:

the Chief or Deputy Chief, Homeland Security Analysis Center; or one of the twenty specially-authorized Homeland Mission Coordinators in the Analysis and Production Directorate of the Signals Intelligence Directorate.

While we don’t know how many analysts are trained on Section 215 dragnet right now, the number was 125 in August 2010.

But even those analysts are not the only people who can access the database. “Technicians” may do so too.

Appropriately trained and authorized technical personnel may access the BR metadata to perform those processes needed to make it usable for intelligence analysis. Technical personnel may query the BR metadata using selection terms that have not been RAS-approved (described below) for those purposes described above, and may share the results of those queries with other authorized personnel responsible for these purposes, but the results of any such queries ill not be used for intelligence analysis purposes. An authorized technician may access the BR metadata to ascertain those identifiers that may be high volume identifiers. The technician may share the results of any such access, i.e., the identifiers and the fact that they are high volume identifiers, with authorized personnel (including those responsible for the identification and defeat of high volume and other unwanted BR metadata from any of NSA’s various metadata repositories), but may not share any other information from the results of that access for intelligence analysis purposes.

And this access — which requires access to the raw metadata — is not audited.

(5) Note, in the past, the government has also accessed the database with “correlated” identifiers — phone numbers and SIM cards associated with the same person. It’s unclear what the current status of querying on correlated identifiers is, but that is likely the topic of one of the FISC opinions the government is withholding, and the government is withholding the opinion in question in the name of protecting an ongoing functionality.

(6) Hayden pretends there’s a clear boundary to this program, but even the FISC minimization procedures for it approve the corporate store, where these query results — people 2 degrees from someone subjected to a digital stop-and-frisk — may be subjected to “the full range of [NSA’s] analytic tradecraft.” So when Hayden says there’s no data mining and no powerful algorithms, he’s lying about the data mining and powerful algorithms (and content access) that are permitted for identifiers in the corporate store.

(7) Given that DOJ has already released their numbers for FISA use in 2013, I presume it also has the number of identifiers that have been queried.

(8) The 288 number refers to the number of identifiers queried, not the number of queries run. Given that the dragnet serves as a kind of alert system — to see who has had contracts with a certain number over time — the number of actual queries is likely significantly higher, as most of the identifiers were likely run multiple times.