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When Your Lawyer is Acting Like H.R. Haldeman, It’s Time to Get a New Lawyer

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President Richard Nixon and his Chief of Staff HR Haldeman, before Nixon resigned in disgrace and Haldeman went to prison for 18 months after being convicted of perjury, conspiracy, and obstruction of justice.

When Cassidy Hutchinson’s September 14, 2022 testimony to the J6 committee first came out, I remember being struck by three sentences in bold below (emphasis added) as I read it (from p. 48):

Ms. Hutchinson. And then just, at the end of that meeting, we had — because I had asked him about doing the, like, mock question preparation, and he said, “No.” So said, “Well, do you recommend anything that I can do to prepare for next week?” He’s like, “Get a good night’s sleep,” like, a few wishy-washy things.

And he said, “Don’t read anything about this on the internet.” He said, “Again, Cass, like, just trust me on this. I’m your lawyer. I know what’s best for you. The less you remember, the better. Don’t read anything to try to jog your memory. Don’t try to put together timelines.”

And he was like, “Especially if you put together timelines, we have to give those over to the committee. So anything you produce we have to give over to the committee. So l really” — he was like, “You can have things in front of you, but really don’t want you to, because we have to give that to the committee.”

So now I’m like, oh now I’m kind of scared. — Like, what if I want notes in front of me and he gets mad at me because I have to give them to the committee now? I didn’t know I would have to give them to the committee, but he told me I did, and he was my lawyer, so I was trying to trust him.

This wasn’t the only place in the transcript where words like these were used – they were almost a refrain. “Where have I heard this before?” I asked myself, then kept reading. Over this past weekend, while helping my mom clean out some old magazines, the penny dropped.

The date was March 21, 1974 1973 [corrected] – two days before the scheduled sentencing of the convicted Watergate burglars. At the White House, things were tense, as the scandal was growing and the coverup was in the process of unraveling. President Nixon, Chief of Staff H.R. Haldeman, and White House Counsel John Dean met for almost two hours, taking stock of the mess and looking for possible routes forward. They discussed additional payments to keep people quiet (noting that earlier payments had bought them silence through the 1972 election), and tried to figure out how to sideline the recently formed Senate Watergate committee chaired by Sen. Sam Ervin (D-NC).

Toward the end of the meeting, Nixon brought up a suggestion from his Domestic Policy Advisor  (and former White House Counsel) John Ehrlichman: instead of letting the Ervin committee run riot in public, announce that all this was going to a new grand jury. From the transcript of the Nixon tapes (with all the typos, punctuation, etc. in the original, but with emphasis added):

PRESIDENT:    John Ehrlichman, of course, has raised the point of another grand jury. I just don’t know how you’re going to do it. On what basis. I, I could call for it, but I…

DEAN:              That would be, I would think, uh…

PRESIDENT:    The President takes the leadership and says, Now, in view of all this, uh, stripped land and so forth, I understand this, but I, I think I want another grand jury proceeding and, and we’ll have the White House appear before them.” Is that right John?

p. 89 [sic, should be 88]

DEAN:              Uh huh.

PRESIDENT:    That’s the point you see. That would make the difference. (Noise banging on desk) I want everybody in the White House called. And that, that gives you the, a reason not to have to go up before the (unintelligible) Committee. It puts it in a, in an executive session in a sense.

HALDEMAN:   Right.

PRESIDENT:    Right.

DEAN:              Uh, well…

HALDEMAN: And there’d be some rules of evidence. aren’t there?

DEAN:              There are rules of evidence.

PRESIDENT:    Both evidence and you have lawyers a

HALDEMAN: So you are in a hell of a lot better position than you are up there.

DEAN:              No, you can’t have a lawyer before a grand jury.

PRESIDENT:    Oh, no. That’s right.

DEAN:              You can’t have a lawyer before a grand Jury.

HALDEMAN: Okay, but you, but you, you do have rules of evidence. You can refuse to talk.

DEAN:              You can take the Fifth Amendment.

PRESIDENT:    That’s right. That’s right.

HALDEMAN: You can say you forgot, too, can’t you?

DEAN:              Sure. –

PRESIDENT:    That’s right.

p. 89

DEAN:              But you can’t…you’re…very high risk in perjury situation.

PRESIDENT:    That’s right. Just be damned sure you say I don’t…

HALDEMAN:  Yeah…

PRESIDENT:    remember; I can’t recall, I can’t give any honest, an answer to that that I can recall. But that’s it.

Hutchinson is too young to have lived through Watergate, but she clearly recognized that Stefan Passantino was acting more like he was more worried about someone else’s legal issues and not her own. It took her a while, but she eventually punted him and found a legal team who agreed to work on her behalf.

Passantino was clearly channeling his inner Haldeman when he told Cassidy Hutchinson “The less you remember, the better.”

Maybe this is a new entry in the DC book of Proverbs: “When your lawyer is acting like H.R. Haldeman, it’s time to get a new lawyer.”

GOP Denounces Barry Goldwater, John Tower, and Richard Nixon?

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John Tower and Barry Goldwater, ca. 1963.

The Republican governors are all clutching their pearls over Biden’s announcement to use the power of the federal government to require many businesses across the country to ensure their employees are either vaccinated against COVID-19 or are regularly tested. The New York Times did a round-up of some their comments, many taken from either Twitter or Sunday morning talk shows. Here’s a taste . . .

Now, they [various GOP governors] are arguing that Mr. Biden’s plan is a big-government attack on states’ rights, private business and personal choice, and promise swift legal action to challenge it, setting up a high-stakes constitutional showdown over the president’s powers to curb the pandemic.

“@JoeBiden see you in court,” Gov. Kristi Noem of South Dakota wrote on Twitter. Gov. Mark Gordon of Wyoming said the new rule “has no place in America,” and said he had asked the state’s attorney general to be ready to take legal action.

In Texas, Attorney General Ken Paxton questioned President Biden’s authority to require vaccinations or weekly testing at private businesses with more than 100 workers.

“I don’t believe he has the authority to just dictate again from the presidency that every worker in America that works for a large company or a small company has to get a vaccine,” Mr. Paxton said, speaking on a radio show hosted by Steve Bannon, who served as a strategist for Donald J. Trump during part of his presidency. “That is outside the role of the president to dictate.”

[snip]

Gov. Greg Abbott of Texas called the actions an “assault on private businesses” in a statement on Twitter. He said he issued an executive order protecting Texans’ right to choose whether or not they would be vaccinated. “Texas is already working to halt this power grab,” he wrote.

Gov. Doug Ducey of Arizona wrote on Twitter: “The Biden-Harris administration is hammering down on private businesses and individual freedoms in an unprecedented and dangerous way.” He questioned how many workers would be displaced, businesses fined, and children kept out of the classroom because of the mandates, and he vowed to push back.

*sigh*

Friends, let me introduce you to Public Law 91-596, initially signed into law on December 29, 1970 by Richard Nixon, and amended variously since then. Below are the first two sections of the law. Notice, please, the language I’ve highlighted with underlining (bold is from the original text):

An Act
To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Occupational Safety and Health Act of 1970.”

Footnote (1) See Historical notes at the end of this document for changes and amendments affecting the OSH Act since its passage in 1970 through January 1, 2004.

SEC. 2. Congressional Findings and Purpose
(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources —

My, but the language of paragraph (a) sounds like Congress intended the US Department of Labor to regulate conditions that create or spread illnesses in the workplace, and paragraph (b) states pretty clearly where Congress claimed the authority for doing so is grounded in the Commerce Clause of the US Constitution.

Continuing on, the act spelled out some of the details of that “purpose and policy” with the following 13 sub-paragraphs (again, underlining is mine):

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;

(4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;

(5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;

(6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;

(7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;

(8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health; affecting the OSH Act since its passage in 1970 through January 1, 2004.

(9) by providing for the development and promulgation of occupational safety and health standards;

(10) by providing an effective enforcement program which shall include a prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition;

(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith;

(12) by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem;

(13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

And what kind of liberal cabal forced this clearly authoritarian legislation through Congress? I’m glad you asked.

The Senate vote was 83-3, with 14 not voting. Among the 83 were Barry Goldwater and John Tower — not exactly a liberal pair of folks. The only three senators to vote against this were James Eastland, Sam Ervin, and Strom Thurmond. Over in the House, the final vote was 310-58, with 65 not voting. Looking at the voting patterns of some of the state delegations, it’s plain to see that this was both bipartisan and widely accepted on their side of the building, too.

  • Kentucky (4D/3R) voted 7-0-0;
  • Wisconsin (5D/5R) voted 9-0-1;
  • Oklahoma (4D/2R) voted 5-0-1;
  • Florida (9D/3R) voted 6-4-2, with the 4 nays all Democrats and 2 who abstained both GOP;
  • Tennessee (5D/4R) voted 5-1-3 (the 3 included 2 Dems and 1 Republican);
  • Arkansas (4D/1R) voted 4-0-1 (the 1 was a D);
  • South Dakota’s (2R) voted 1-0-1;
  • Montana (2D) voted 2-0-0;
  • Wyoming’s sole GOP representative voted aye.

In other words, there were staunch conservatives who voted for this, along with plenty of non-conservatives. The bill that became Public Law 91-596 was seen by a wide majority of both the members of the House and Senate to be a good thing, and well within the powers of the Federal Government to undertake.

Go back to the text of the law above, and look at items 6 and 7. These both make clear that OSHA’s mission includes dealing with disease transmission in the workplace. Then skip down to 11, which says the Federal government should work with states, including providing grants for this work. You know, like providing a free vaccine to deal with disease transmission in the workplace.

OSHA has been around for more than 50 years, and no one has succeeded in challenging their the authority to regulate health conditions in the workplace under this act. There have been successful arguments overturning specific regulations, but the authority to regulate has not been overturned.

I’m not a governor or an attorney general, but I can read the plain text of the law. I can see the wide political range of legislators who voted to create OSHA, and given that OSHA is still here and going strong after 50 years, it’s clear that the ability of the federal government to regulate the workplace for safety and health has not been overturned or declared unconstitutional.

So if anyone reading happens to be in conversation with one of these pearl-clutching Republican leaders when they start in on their “This is unprecedented and un-American!” nonsense, ask them for a link.

Better yet, ask Governor Ducey why Goldwater voted for OSHA. Ask Governor Abbott and AG Paxton why John Tower voted for OSHA. Ask any of today’s so-called conservatives why a bunch of other conservatives voted with Goldwater and Tower to approve OSHA, and why a conservative like Richard Nixon signed it.

The History of High Crimes and Misdemeanors

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Ed. note: Longtime friend of the blog Cynthia Kouril moderated a CLE on impeachment. She wrote up this statement after the panel. She has given us permission to post her statement from that here.

For all of you out there wondering what “High Crimes & Misdemeanors” means and whether or not there has to be an ‘underlying crime’ let me help you out here.

Last week I moderated a CLE on Impeachment and you are welcome to the fruits of my labors on that topic.

A basic rule of legal interpretation is that you cannot define a legal term using information not yet in existence at the time the term was used. At the time the Constitution was debated and adopted, there was no federal criminal code, much less the US Code we have today. So, you cannot use anything in the current Code to define “High Crime & Misdemeanor”.

You have to use that term, and it is a legal ‘term of art’ as the phrase was understood when it was inserted into the Constitution. It is interesting to note that this phrase is ONLY used in connection with impeachment. Crimes in the criminal code are low crimes.

The term is first recorded in the impeachment of of the King’s Chancellor, Michael de la Pole, in 1386. One of the “High Crimes & Misdemeanors” de la Pole was charged with, was the failure to expend moneys appropriated by Parliament as the appropriation directed him to do, just like Trump withholding funds appropriated by Congress which was required to be given to Ukraine by a date in September. Contrary to the GOP’s claims, not all the Ukraine aide was committed in time and Congress had to do a second appropriation to restore the unspent money.

Not every impeachment in the next 400 years used this phrase, but in each instance where it was used, it was 1) only in the context of impeachment, and 2) referred to offenses that implicated either misuse of their office (including using their office for self enrichment) or failure to obey Parliament (basically a failure to observe separation of powers).

At the time the Constitution was being written and edited there was a famous impeachment trial going on involving the Viceroy of India. A Viceroy (“vice king”, ‘roi’ being french for king) is the representative of the crown in a way far more important than a governor. A British governor was subject to instruction from London, the Viceroy was imbued with the monarch’s own Majesty and ruled an entire country (such as Ireland or India) rather than an individual colony.

So, the impeachment of Warren Hastings ran from 1786 to 1795, while the Constitution was being debated and was the “trial of the century” of its day. Everybody talked about it. He was charged with “gross maladministration, corruption in office, and cruelty towards the people of India”.

At the time of Nixon’s impeachment Peter Rodino commissioned a staff report on the history of impeachment including the meaning of this phrase. The report which runs some 60 pages with footnotes and endnotes, is fascinating to read. It’s conclusion with respect to this term of art: “[t]wo points emerge from the 400 years of English parliamentary experience with the phrase “high Crimes and Misdemeanors”. First, the particular allegations of misconduct alleged damages to the state in such forms as misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust. Second the phrase “high Crimes and Misdemeanors” was confined to parliamentary impeachments; it had no roots in ordinary criminal law, and the particular allegations of misconduct under that heading were not necessarily limited to common law or statutory derelictions or crimes.”

I hope you find the above helpful.

Update: I updated the intro to make it clear that Kouril moderated, did not put together, the CLE, and this contribution was written afterwards. 

Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

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Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.

As Democrats Entertain a Ukraine-Only Impeachment, Jack Goldsmith Lays Out Import of Impeaching for Clemency Abuse

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As June Bug the Terrorist Foster Dog and I drove the last leg of our epic road trip over the last few days, I listened to Jack Goldsmith’s book on his stepfather, Chuckie O’Brien, In Hoffa’s Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth.

It’s a fascinating book I’m pondering how to write about: Imagine a book written by a top surveillance lawyer describing how he learned things his beloved stepfather was lying about by reading old FBI transcripts of wiretaps targeted at top mobsters.

The entire point of the book is to exonerate O’Brien of any role in Jimmy Hoffa’s murder, and it fairly convincingly does that. As Goldsmith describes, the FBI admitted privately to him that they belatedly realized his father couldn’t have had a role in Hoffa’s disappearance, but because the FBI is the FBI, they refused to state that in an official letter (though it was Barb McQuade, then as Detroit’s US Attorney, who made the final call).

But in Goldsmith’s effort to exonerate his step-father on the Hoffa murder, he implicates him in a shit-ton of other crimes … including being the bagman for a $1 million bribe to Richard Nixon so he would commute Hoffa’s sentence for jury tampering (which Chuckie was also a key player in). Here’s how Goldsmith describes O’Brien’s claims about the payoff.

Chuckie nonetheless insists there was a payoff. And he says he was the delivery boy.

Chuckie told me that in early December 1971, he received a telephone call in Detroit from Fitzsimmons’s secretary, Annie. “Mr. Fitzsimmons would like to see you,” she said. Chuckie got on the next plane, flew to Washington, and went straight to Hoffa’s former office at the foot of Capitol Hill. After small talk, Fitzsimmons got to the point. “He’s coming home, and it’s going to cost this much,” Fitzsimmons whispered to Chuckie, raising his right index finger to indicate $1 million. “There will be a package here tomorrow that I want you to pick up and deliver.”

The following afternoon, Annie called Chuckie, who was staying at a hotel adjacent to the Teamsters headquarters near the Capitol building. “Mr. Fitzsimmons asked me to tell you that you left your briefcase in his office,” she said. Chuckie had not left anything in Fitzsimmons’s office, but he quickly went there. Fitzsimmons was not around, but Annie pointed Chuckie to a leather litigation bag next to Fitzsimmons’s desk—a “big, heavy old-fashioned briefcase,” as Chuckie described it. Chuckie picked up the bag, and Annie handed him an envelope. Inside the envelope was a piece of paper with “Madison Hotel, 7 p.m.” and a room number written on it.

It was about 5:00 p.m., and Chuckie took the bag to his hotel room. He had delivered dozens of packages during the past two decades, no questions asked, mostly for Hoffa, sometimes for Giacalone, and very occasionally for Fitzsimmons. But this time was different. Chuckie knew of the strain between Fitzsimmons and Hoffa. He wasn’t sure what game Fitzsimmons was playing, especially since Hoffa had not at this point discussed a payoff with him. Chuckie was anxious about what he was getting into. And so he did something he had never done before: he opened the bag.

“I wanted to see what was in the briefcase,” Chuckie told me. “I didn’t trust these motherfuckers. I needed to look; it could have been ten pounds of cocaine in there and the next thing I know a guy is putting a handcuff on me.”

What Chuckie saw was neatly stacked and tightly wrapped piles of one-hundred-dollar bills. He closed the bag without counting the money.

The Madison Hotel, where Chuckie was supposed to deliver the bag, was two miles away, six blocks north of the White House. It “was a very famous hotel” in the early seventies, a place where “political big wheels” and “foreign dignitaries” stayed, Chuckie told me. At about 6:45 p.m., Chuckie took a taxi to the Madison, went to the designated floor, walked to the room (he doesn’t remember the number), and knocked on the door. A man opened the door from darkness. Chuckie stepped in one or two feet. He sensed that the room was a suite, but could not tell for sure.

“Here it is,” Chuckie said, and handed over the bag.

“Thank you,” said the man. Chuckie turned and left. That was it. The whole transaction, from the time he left his hotel to the delivery on the top floor of the Madison, took less than twenty minutes. The actual drop was over in seconds.

If O’Brien is telling the truth, it means that in addition to locking in Teamster support for 1972, Nixon got a chunk of money for the election (just as Trump just hit up Wayne LaPierre for fundraising support in exchange for killing gun control).

Goldsmith’s step-father claims that the money for the payoff came directly from Hoffa — but he either didn’t know or wouldn’t say whom he delivered it to.

“Where did the money come from?” I asked. “From the Old Man,” Chuckie answered. “Through Allen Dorfman. It was the Old Man’s money. Dorfman had a lot of his money. Fitz wouldn’t give you a dime if you were dying.”

[snip]

“Did Fitz tell you who you were delivering the bag to?” I asked. “No. I took the fucking briefcase to where it’s supposed to go, I never asked any questions. You never ask, Jack.”

This is something that John Mitchell lied about to prosecutors, just as the stories of Rudy Giuliani and Jay Sekulow regarding the pardons they’ve negotiated with Russian investigation witnesses don’t hold up.

Since that time, presidential abuses of pardons have only gotten worse. Say what you will about the Marc Rich pardon (and I agree it was ridiculous), both Poppy Bush (Cap Weinberger) and W (Scooter Libby) provided clemency to witnesses to silence them about actions of the Bush men. Bill Barr was a key player in the Poppy pardons, and he seems all too willing to repeat the favor for Trump.

Until Congress makes reining in the abuse of executive clemency a priority, the claim that no one is above the law will be a pathetic joke. Plus, there are at least allegations that Trump’s effort to dig up Ukrainian dirt stemmed from an effort to make pardoning Paul Manafort easier. And the Ukraine corruption involves someone — Rudy — who was intimately involving in bribing witnesses with pardons in the past.

More generally, any decision to narrowly craft impeachment would be catastrophically stupid, not least because other impeachable acts — such as Trump’s treatment of migrants — will be far more motivating to Democratic voters than Ukraine. But to leave off Trump’s abuse of the pardon power would be a historic failure.

How Roger the Rat Fucked Himself

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After the FBI arrested Roger Stone today, they conducted searches on his homes in Florida and NYC. It will be interesting to see whether and if so how much evidence they found in his homes.

That’s because — in spite of the fact that Stone has been rat-fucking for almost a half century, and in spite of the fact that Stone was willing to risk major prison time as part of a cover-up, Stone utterly fucked himself by keeping incriminating materials around and leaking them out via journalists.

If Ronald Reagan is rolling in his grave today because the Air Traffic Controllers showed that by working collectively they could be more powerful than a President, then Richard Nixon is rolling in his grave today that a guy still branded with his face failed the cover-up so much worse than Nixon himself (Unrelatedly, but hysterically, the Nixon Foundation released a statement today effectively calling Stone a coffee boy).

Consider this passage in his indictment for lying to the House Intelligence Committee:

STONE’s False and Misleading Testimony About His Possession of Documents Pertinent to HPSCI’s Investigation

22. During his HPSCI testimony, STONE was asked, “So you have no emails to anyone concerning the allegations of hacked documents . . . or any discussions you have had with third parties about [the head of Organization 1]? You have no emails, no texts, no documents whatsoever, any kind of that nature?” STONE falsely and misleadingly answered,  “That is correct. Not to my knowledge.”

23. In truth and in fact, STONE had sent and received numerous emails and text messages during the 2016 campaign in which he discussed Organization 1, its head, and its possession of hacked emails. At the time of his false testimony, STONE was still in possession of many of these emails and text messages, including:

a. The email from STONE to Person 1 on or about July 25, 2016 that read in part, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.”;

b. The email from STONE to Person 1 on or about July 31, 2016 that said an associate of Person 1 “should see [the head of Organization 1].”;

c. The email from Person 1 to STONE on or about August 2, 2016 that stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”;

d. Dozens of text messages and emails, beginning on or about August 19, 2016 and continuing through the election, between STONE and Person 2 in which they discussed Organization 1 and the head of Organization 1;

e. The email from STONE on or about October 3, 2016 to the supporter involved with the Trump Campaign, which read in part, “Spoke to my friend in London last night. The payload is still coming.”; and

f. The emails on or about October 4, 2016 between STONE and the high-ranking member of the Trump Campaign, including STONE’s statement that Organization 1 would release “a load every week going forward.”

24. By falsely claiming that he had no emails or text messages in his possession that referred to the head of Organization 1, STONE avoided providing a basis for HPSCI to subpoena records in his possession that could have shown that other aspects of his testimony were false and misleading.

To be clear, I’m sure that Mueller has independent basis for his knowledge that, “At the time of his false testimony, STONE was still in possession of many of these emails and text messages,” showing that he talked about what documents Assange had. As I’ve said, I think it highly likely Stone was included among those on whose phones Mueller got a warrant in March of last year. And if he could get a warrant for Stone’s phone, he obviously could get a warrant for Stone’s email (and probably issued preservation orders when he became Special Counsel in May 2017, if FBI hadn’t already done so).

But Mueller would have had proof that Stone had possession — and knowledge of — some of these records even without a warrant. That’s because Stone, in an apparent effort to undermine Mueller’s case, has been slowly leaking them to the press, accelerating last November.

Of those listed here, for example, after Bannon leaked the October 4 email set to the NYT and WaPo, Stone responded with a piece under his own name acknowledging those emails.

I had been told this would come in October for months by my source Randy Credico, whom I identified for the House Intelligence Committee.

[snip]

When Bannon’s minion Matt Boyle asked me if what Assange had was “good” I replied it was, based on Credico’s insistence the material was “devastating,” “bombshell” and would “change the race.” This turned out to be right, although — as I have testified — I never knew the content or source of the Wikileaks disclosures in advance.

As for the August 2016 texts with Randy Credico, some days later, Stone leaked them to the Daily Caller, again, using his own name.

Julian Assange has kryptonite on Hillary,” Randy Credico wrote to Stone on Aug. 27, 2016, according to text messages that Stone provided to The Daily Caller News Foundation.

Mueller didn’t need a warrant to obtain the evidence to convict Roger Stone. He has the Daily Caller for that!!

Which raises the question why — other than sloppiness, hubris, or declining rat-fucking skills — Stone went to the trouble of lying to HPSCI if he didn’t, at the same time, delete all records of his election year rat-fuckery, which might have minimized the charges he is facing today.

Stone chose to keep these records, even (apparently, though I don’t know that those came out other than in Corsi’s own leaked plea deal) the ones with Corsi that show he was lying about Credico. Stone chose to obstruct justice, but not to do so in a way that would destroy the evidence he was trying to hide.

One reason he may have wanted to do that was to keep leverage over Trump and people like Steve Bannon in his immediate circle.

Which may mean today’s raids found far more interesting evidence implicating Trump and others.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

A Roadmap to the Nixon and/or Mueller Roadmap

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The other day, I noted that the Roadmap being FOIAed by Ben Wittes and friends and previously FOIAed by Geoffrey Shepard might serve as a guide, of sorts, for the kind of report Robert Mueller might write such that it could easily be shared with the House Judiciary Committee, particularly in case Mueller got fired.

This week, the National Archives released all parts of the road map they’ve been able to map to previously public items; the FOIAs continue for the grand jury materials not previously released. Lawfare did this post on what got released.

I’m going to lay out what got released. Some of this had already been released, but in this post I’m going to lay out how it all relates together, with an eye towards what we know is going on in the Mueller investigation right now. My treatment here is not in the order that NARA has released them; I’ve rearranged them to show how the Special Prosecutor kept a running memo of what evidence there was against Nixon, which led to an attempt to get Nixon’s testimony, which led to a draft indictment, which led to the Road Map packaging up the evidence behind the indictment to send to the House Judiciary Committee.

I’m not going to deal with the negotiations on the grand jury materials; I may return to that in the future. My goal here is to show how investigative materials — including some that were not evidence of a crime but were evidence of Presidential bad faith — got packaged up to send to the House Judiciary Committee. I’ll do a follow-up post with more observations on what this might tell us, if Mueller is following this road map.

Summary of Evidence (Draft 2, Prepared for Archibald Cox in August 1973, earlier June 7, 1973 memo)

Starting in June 1973, before Cox was fired, he started pulling together all the evidence against Nixon.

This draft memo from August 1973 includes examples of Nixon’s evolving story about whether he knew of CREEP and the break-in in advance, about efforts to impede the FBI investigation (including by calling Patrick Gray to weigh in), about offers of clemency, all of which are similar to what I’m sure Mueller has about Trump’s knowledge in real time of the Russian operation.

The memo lays out what circumstantial evidence there is to support he did have foreknowledge, in some cases referencing the evidence directly, in others pointing to where the evidence would be. At one point it states the old adage, “what did the President know and when did he know it,” this way: “it would be important to know whether, and precisely when, the President may have known about the payoffs.” It clearly labels what is supposition or circumstantial and in places describes what would need to be established to substantiate foreknowledge of something.

The evidence cited includes grand jury testimony, Senate testimony, paperwork, and the press (for witnesses’ public claims). As evidence of some things, it describes “discrepancies between his public statements urging a full investigation and claiming such an investigation had been conducted, and the President’s actual failure to cause a thorough investigation to be made or assure that one was being made.” (33)

We joke about Mueller having a file of all Trump’s incriminating tweets, but a memo like this is probably how the Mueller team keeps running track of what solid evidence, circumstantial evidence, and exculpatory evidence against Trump they have.

Summary of Evidence August 24, 1973, adding Plumbers, Dirty Tricks, ITT, and Campaign Contributions

This is a finalized version of the above with a cover memo giving credit to the people who worked on each section.

Communications regarding Nixon’s testimony

There are three subsections here, without an introduction. I’ll deal with them out of order.

C. Communications of the Special Prosecutor’s Office

The more interesting part of these communications, for current purposes, show the Special Prosecutor’s Office negotiating for Nixon’s testimony and considering whether to present interrogatories — what I call an open book test — to him. These are the kinds of negotiations we know to be going on right now between Mueller’s team and Trump, surely using some of the very same arguments.

While by January 29, 1974, the Special Prosecutor had decided against giving Nixon questions to answer under oath, the correspondence does include efforts to get each of the task forces (note, Mueller’s team appears to be organized into task forces as well) to come up with the interrogatories they would pose to the President in January 1974, as in these questions about investigations of people on Nixon’s enemies list.

We just have the interrogatories from two task forces, which amount to around 31 questions. Remember that by March, Mueller’s team already had over 40 questions for Trump, though they had not, as far as we know, yet presented them as formal interrogatories to him. Trump has reportedly finished the interrogatories Mueller gave him, but he’s sitting on them until after Tuesday’s election.

Starting in September 1974, the Special Prosecutor paperwork turns to obtaining Nixon’s testimony, leading through the generation of questions for ultimate his 1975 questioning.

A. Communication from the Grand Jury to Nixon

Then there are communications from the grand jury to Nixon, both in this early 1974 period and in 1975 when they actually did get his testimony. Most remarkably, on January 30, 1974 (the day after the Special Prosecutor had given up on interrogatories), the foreperson, Vladimir Pregelj, wrote Nixon describing why they needed his testimony. Note how he describes that prosecutors would soon make recommendations about “major phases of our investigation.”

B. Nixon’s communications with the Special Prosecutor

Finally, there is Nixon’s side of the communications with the Special Prosecutor’s office, including their explanation in September 1974 of why Nixon could never get a fair trial. This correspondence is less interesting (to me, at least), but Rudy Giuliani has probably used some of it to model his memo of why Trump shouldn’t be investigated.

Draft Indictment of the President, February 1, 1974

As much as anything else, I’m fascinated by the date of the indictment Jaworski’s team drafted: February 1, 1974. This shows that shortly after giving up on the idea of presenting interrogatories to Nixon, two days after the jury foreperson said the Special Prosecutor would soon present recommendations to the grand jury, and at a time when the Special Prosecutor was still fighting the President’s lawyer’s efforts to avoid testifying, Jaworski’s team had a draft indictment.

The indictment charged four crimes — bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation. While it was originally titled US v. Nixon, an edit suggested it should be In Re June 5, 1972 Grand Jury, the investigation actually obstructed.

On top of introducing Nixon and the FBI, the introduction of the indictment describes the burglary the investigation of which Nixon obstructed. Then, Count One uses five paragraphs to describe generally how the conspiracy worked. Paragraph 11 lays out three actions Nixon took on March 21, 22, and 23, 1973 (basically, ordering payment to Howard Hunt). Then paragraph 12 and a series of numbered paragraphs thereafter lay out the 9 overt acts behind the conspiracy.

  1. March 16: Hunt meets with O’Brien
  2. March 21: Dean meets with Nixon
  3. March 21: Nixon meets with Dean and Haldeman and instructs bribe to Hunt be paid [handwritten marginal note to add conversation with Mitchell]
  4. March 21: LaRue provides messenger cash for Bittman
  5. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman and instructs Dean to write up report on Watergate
  6. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of
  7. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate
  8. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony
  9. March 23: Haldeman tells Dean to prepare report on Watergate

The remaining Counts restate the underlying act — bribing Hunt — and tie it to the other crimes.

There are an additional 9 redacted pages that were deemed protected grand jury materials (this stuff might get unsealed depending on the outcome of an appeal before the DC Circuit right now).

The Road Map

The Road Map was filed under seal on March 1, 1974 (that is, just a month after Jaworski’s office gave up on interrogatories from the President and drafted an indictment against him). It includes an introduction, then an elaboration of the overt acts from the draft indictment, with the connecting steps between them, as follows (I’ve kept the overt acts from the indictment in bold):

  1. March 16: Hunt meets with O’Brien (cites 3 grand jury transcript passages)
  2. March 19: O’Brien meets with Dean (cites Dean grand jury transcript and visitor log)
  3. March 19: Dean means with Ehrlichman about Hunt (cites two grand jury excerpts)
  4. March 20: Dean talks to Mitchell about Hunt (cites tape recording and Dean grand jury)
  5. March 21: Dean meets with Nixon, then with Dean and Haldeman and instructs bribe to Hunt be paid [note this combines overt acts 5 and 6 from the indicment] (includes extensive description of the meeting, cites two recordings of meeting)
  6. March 21: Haldeman talks to Mitchell (cites two grand jury excerpts and Haldeman’s phone log)
  7. March 21: Mitchell talks to LaRue (cites LaRue’s grand jury)
  8. March 21: Haldeman meets with Ehrlichman and Dean about how to handle things (cites meeting logs, recording, grand jury)
  9. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman to discuss how to handle things (cites recording)
  10. March 21: LaRue provides messenger cash for Bittman (cites five grand jury witnesses and seven exhibits)
  11. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of [note indictment overt act 5 — the first meeting about the report — is taken out of this chronology] (cites grand jury testimony of all three)
  12. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate which Nixon can later “rely” on (cites tape recording and Haldeman’s notes)
  13. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony (cites Krogh grand jury testimony)
  14. Redacted [note Haldeman order to Dean would appear here in chronology]

From there, the road map includes a bunch of stuff not included in the indictment:

15 through 28: Nixon’s attempts at a cover-up

29 through 43: Nixon’s foreknowledge of dirty tricks and the coverup up to March 17, including the missing 18 minutes, and immediate response to Watergate, including offers of pardons

44 through 53: Nixon’s lies about wanting an investigation

 

Photo: Pavan Trikutam via Unsplash

Three Things: The Reanimation of Nixon Among Them

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Busy, busy week. Load up on the caffeine or stimulant of choice and let’s get cracking.

~ 3 ~

At 9:00 pm EST Saturday evening I posted:

Any time now I expect someone in the administration will not only say openly that Trump authorized the transition team to discuss dropping the sanctions, but that it isn’t illegal when the president does it.

This morning about 6:00 am EST in Axios:

John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice.

The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Dowd claims. (emphasis mine)

It’s like they dug up Nixon and reanimated him with a chatbot. No wonder the White House is infested with mice and insects.

~ 2 ~

The Tax Scam Bill isn’t yet legislation; we still have at least a couple chances to kill it. It will be up for a vote in the House today, under a Motion to Go to Conference. Call your representatives well before 6:00 p.m. and ask them to vote NO on going to conference. This bill should simply not proceed any further.

Did you know those GOP jackasses in the Senate actually added a tax on retail gift cards? If your employer gives your a grocery store gift card to buy a holiday ham, you could be taxed on it. If you tip your child’s caregiver with a retail gift card they could be taxed on it. What is wrong with these Dickensian jerks?

I’m not the only one who thought of Scrooge when Old Man Orrin Hatch complained about poor children who relied on CHIP health care, saying ““I have a rough time wanting to spend billions and billions and trillions of dollars to help people who won’t help themselves – won’t lift a finger – and expect the federal government to do everything.”

By the way, it was Hatch who added the retail gift card tax. Leave no meal to a poor child untaxed.

Need a little help with that phone call to your rep? See @Celeste_pewter — she’s got you covered.

~ 1 ~

Folks in Nevada need to take a cluestick to Senator Dean Heller after his execrable public townhall this weekend. His security goon squad first threatened a Stage 4 cancer patient, then threw her out along with an elderly woman with a broken arm. At least 10 attendees were ejected.

There’s video.

There are tweets.

There’s no escaping how bad the optics were; Heller wants this Tax Scam Bill for his oligarchic sponsors so badly he’ll step on the sick, injured, and elderly to get it. And then Heller doubled down on his monstrousness when asked if he’d read the Tax Scam Bill, tweeting, “Read it? I helped write it!”

It’s on you, Heller. This is your legacy. You said it, you wrote it.

~ 0 ~

Our celebration of emptywheel’s 10th anniversary continues. Watch for a post by Jim White midday today; Marcy is working on a super-sized post on all things surveillance. Stay tuned!

And if you can pitch in some rodent chow to keep the site’s squirrels on their treadmill, we’d appreciate it greatly.

This is an open thread — your off-topic comments are welcomed in this thread. Let’s kick some ass and take names this Monday morning.

By “Secret Law” Did They Mean “Not Written Down”?

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For years, Ron Wyden and Mark Udall have been calling the secret interpretation of Section 215 “secret law.”

I’ve always thought they meant that figuratively. The law got made by the FISA Court in secret, but there’s an opinion there somewhere, laying out the interpretation of the law. It’s just secret.

Ever since the release of the first documents responsive to the EFF/ACLU FOIAs, I’ve begun to wonder. What we’ve seen include:

Neither of those were comprehensive. And the “supplemental opinion” would seem to suggest it supplemented … something.

Yesterday, we got what appears to be a (shoddy) comprehensive opinion.

That opinion cites an earlier opinion from the FISA Court that is not, however, cited in either the 2006 or 2008 opinions. That earlier opinion examines how bulk collection affects the Fourth Amendment.

Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

Furthermore, for the reasons stated in [redacted] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. [my emphasis]

Note while this pertains to metadata, there’s no indication it addressed phone metadata.

Later, it cites two earlier FISC cases.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”  [my emphasis]

Both, apparently, relied on the Pen Register statute, not Section 215, and one was fairly recent (2010 — perhaps that’s the geolocation one?).

But it appears not to reference an earlier Section 215 phone metadata case, not even to lay out the rationale for relevance and bulk collection.

In addition to references to these earlier apparently non-215 phone data precedents, Eagan also cites the government’s 2006 Memorandum of Law.

Accompanying the government’s first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that “[i]nformation is ‘relevant’ to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation.” Mem. of Law in Support of App. for Certain Tangible Things for Investigations to Protect Against International Terrorism, Docket No. BR 06- 05 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), and Fed. R. Evid. 4012°).

Normally, a judge would cite a precedential opinion, showing that another judge had agreed with such definitions. Not here. Eagan cites the government’s own memorandum for the definition for relevant. (She cites that memorandum at least two more times in her opinion.)

Which seems to suggest this 2013 opinion — one written after widespread leaks of the program — constitutes the first opinion systematically rationalizing this program.

Well over 7 years after it started.

There’s one more detail that seems to support this conclusion. The White Paper describes how the Administration shared significant FISC materials with the Intelligence and Judiciary Committees.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

So in 2007 DOJ started providing “all significant pleadings.” By the end of the following year — perhaps not coincidentally, the same month Walton wrote his supplemental opinion — the committees got “the initial application and primary order.”

The initial application (including, presumably, that same 2006 Memorandum of Law cited by Eagan) and the primary order, the same order we got last week. No mention of the initial opinion.

It appears there is no initial opinion.

One more detail that I’ve mentioned, but bears mentioning again. The judge that appears to have allowed the government to start collecting the phone records of every American without laying out his legal rationale for allowing them to do so, Malcolm Howard? He served as Deputy Special Counsel in the Nixon-Ford White House, when a young Dick Cheney was learning the ropes as Assistant to the President and then Chief of Staff.

Perhaps they learned the ropes together?

Update: Remember how the White Paper had to dig up an outdated version of the OED to support its definition of “relevant”?

the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

Note, that appears to be the same one used in the 2006 Administration Memorandum of Law. There’s nothing that surprising about that — I suspect substantial parts of the White Paper were lifted from that Memorandum.

But it is the kind of thing both Malcolm Howard and Claire Eagan might have challenged — and an adversary probably would have.

It appears neither did. Which is just one measure of the degree to which those judges simply rubber stamped whatever the government put before them.