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The SpyGate to DeflateGate Story Is an Illogical Tale

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ESPN has a breaking story claiming that the reason the NFL — the implication is, Roger Goodell — went overboard with the DeflateGate investigation is because Goodell lost credibility when he went easy on his buddy Robert Kraft during the SpyGate investigation and so overcompensated on DeflateGate.

Even the two paragraphs that make that case don’t make sense.

From the beginning, though, Goodell managed Deflategate in the opposite way he tried to dispose of Spygate. He announced a lengthy investigation and, in solidarity with many owners, outsourced it to Wells, whose law firm had defended the NFL during the mammoth concussions litigation. In an inquiry lasting four months and costing at least $5 million, according to sources, Ted Wells and his team conducted 66 interviews with Patriots staffers and league officials. Wells, who declined to comment, also plumbed cellphone records and text messages.

A 243-page report was made public that applied the league’s evidentiary standards — relaxed after Spygate — against Brady, while Belichick, who had professed no knowledge of the air pressure of his team’s footballs and said this past January that the Patriots “try to do everything right,” was absolved of any wrongdoing. Finally, Goodell and Troy Vincent, executive vice president of football operations, waited until the conclusion of the investigation before awarding punishment, rather than the other way around. Another legacy of Spygate — consequences for failing to cooperate with a league investigation — was used against the Patriots and, ultimately, Brady. Goodell upheld Brady’s four-game suspension because the quarterback had asked an assistant to dispose of his cellphone before his March interview with Wells. That, in fact, was the only notable similarity between the two investigations: the order to destroy evidence.

The NFL drew its conclusions — in uncorrected leaked claims that the Pats’ balls were underinflated and the Colts’ balls weren’t — instantaneously. From that point on they were stuck, and that may be why they doubled down on stupid when their evidence proved shoddy. Goodell didn’t outsource his investigation, because NFL VP Jeff Pash had a role in it and Wells was also being retained as NFL’s counsel (remember that folks in New England believe Pash was one of the sources for the inaccurate claims about the Pats and Colts’ inflation rates to Chris Mortenson). While Wells had reviewed the Pats’ cell phone records in this case, the NFL had withheld their own in the Ray Rice case. The failure to cooperate was used more in Goodell upholding the punishment than in the original punishment (though the NFL couldn’t actually explain to Judge Richard Berman which was which). And given that Wells had told Brady he didn’t need to turn over his phone, his decision to destroy his own phone shouldn’t be considered central to anything but the PR.

But the latter part of this passage — included, but not probed — is one of the biggest reasons why this explanation makes no sense. If Goodell wanted to prove he was being tough on the Patriots with DeflateGate — including the mastermind, purported cheater Bill Belichick — then why didn’t he invent evidence that BillBel was “generally aware” of the alleged-but-never-proven deflation scheme, and punish the hell out of him? Why focus on Brady, when the lack of evidence actually implicating Brady seemed to impose no limitations on Goodell’s punishment? Indeed, why use a management standard on integrity of the game against Brady, who is only subject to the players’ standards, rather than using it against BillBel, who is legally subject to its terms??

Those who believe BillBel is a cheat ought to be asking why the NFL came up with a substance-free accusation against Brady but chose not to launch a substance-free accusation against BillBel, against whom (the rest of the story lays out) there was a slew of evidence of breaking the rules.

Moreover, the entire premise of the article is that Goodell was proving he learned his lesson on SpyGate. Yet one of Goodell’s key favors to the Pats in SpyGate was punishing the Pats for an individual violation, the taping of the Jets game, while covering up evidence of more systematic violations, the tapes of other games, which Goodell had destroyed back in 2007. Yet one of the reasons Judge Berman thumped the NFL so hard is that the NFL claimed DeflateGate was only about the AFC playoff game, for which there was zero evidence of Brady involvement, rather than earlier discussions of deflating footballs (albeit to NFL code), in which Brady was involved. That is, Goodell and the NFL did precisely the same thing again, which is one thing that got them in trouble with the court, punishing the Pats for the specific infraction and not a more general pattern (which is not to say there was evidence for a more general pattern, but the evidence implicating Brady was only tied to a more general pattern).

So what has this blockbuster and curiously timed story proven?

First, that the stories about Matt Walsh, the guy to whom claims about watching — but not filming — the Rams pre-Super Bowl practice walk through are sourced, remain inconsistent. The story shows that Walsh told the NFL one thing, then told Arlen Specter more. And Mike Martz (whose subsequent less than stellar career the story blames the Rams loss for ruining, which is clearly false, take it from a Detroit Kitties fan) claims his statement about the game, which was key in deferring further investigation, was embellished.

Martz says he still had more questions, but he agreed that a congressional investigation “could kill the league.” So in the end, Martz got in line. Hewrote the statement that evening, and it was released the next day, reading in part that he was “very confident there was no impropriety” and that it was “time to put this behind us.”

Shown a copy of his statement this past July, Martz was stunned to read several sentences about Walsh that he says he’s certain he did not write. “It shocked me,” he says. “It appears embellished quite a bit — some lines I know I didn’t write. Who changed it? I don’t know.”

Notably, Walsh did not cooperate with this ESPN story, and ESPN has, of course, made some recent (and therefore probably during the vetting of this article) middle-of-the-night apologies for claiming the walk through was taped.

Did ESPN think they had proven that but ended up not claiming it? Have the Pats been making some legal pushes about this issue in recent days, one which might explain this language?

Some media outlets — including ESPN — have inadvertently repeated it as fact. According to Patriots spokesman Stacey James, “The New England Patriots have never filmed or recorded another team’s practice of walkthrough. … Clearly the damage has been irreparable. … It is disappointing that some choose to believe in myths, conjecture and rumors rather than give credit to coach Belichick, his staff and the players.”

This story is, in part, about the continued claims about the Super Bowl that for whatever reason ESPN couldn’t or didn’t confirm.

But the other thing the story does is dodge who is actually responsible for Goodell’s serious fuck-ups on discipline. The story notes that Kraft, among others, blames Goodell’s flunkies, including Pash by name, for these failures.

Kraft was also furious at the league’s executives, from Pash to its public relations staff, and said they had failed to help Goodell. “Roger’s people don’t have a f—ing clue as to what they are doing,” Kraft told his friend.

I find that particularly interesting given how central a role Pash is in this story, including to the outcome of SpyGate. For example, a judgment sourced to a Specter aide claimed that Pash was squirming during the interview with the Senator.

During the 1-hour, 40-minute interview, the new details of which are revealed in Specter’s papers and in interviews with key aides, Goodell was supremely confident, “cool as a cucumber,” stuck to his talking points and apologized for nothing, recalls a senior aide to Specter. Pash, who according to a source later that spring would offer to resign over how the Spygate investigation was handled, spent the interview “sweating, squirming.”

Just as curiously, ESPN reports — without describing their source — that Pash offered to resign. Why would he be responsible? Who within NFL (which claims not to have cooperated here) told ESPN that?

Especially given this passage, which is they key reveal of Goodell ordering Pash and another NFL flunkie destroy the tapes that would have been far more damning to Belichick and Kraft.

The next day, the league announced its historic punishment against the Patriots, including an NFL maximum fine of Belichick. Goodell and league executives hoped Spygate would be over.

But instead it became an obsession around the league and with many fans. When Estrella’s confiscated tape was leaked to Fox’s Jay Glazer a week after Estrella was caught, the blowback was so great that the league dispatched three of its executives — general counsel Jeff Pash, Anderson and VP of football operations Ron Hill — to Foxborough on Sept. 18.

What happened next has never been made public: The league officials interviewed Belichick, Adams and Dee, says [Kraft Group VP Robyn] Glaser, the Patriots’ club counsel. Once again, nobody asked how many games had been recorded or attempted to determine whether a game was ever swayed by the spying, sources say. The Patriots staffers insisted that the spying had a limited impact on games. Then the Patriots told the league officials they possessed eight tapes containing game footage along with a half-inch-thick stack of notes of signals and other scouting information belonging to Adams, Glaser says. The league officials watched portions of the tapes. Goodell was contacted, and he ordered the tapes and notes to be destroyed, but the Patriots didn’t want any of it to leave the building, arguing that some of it was obtained legally and thus was proprietary. So in a stadium conference room, Pash and the other NFL executives stomped the videotapes into small pieces and fed Adams’ notes into a shredder, Glaser says.

First, in a story of this sort, I find it curious that ESPN shows no curiosity, much less reporting, on who leaked key details to the press, both the tape of the Jets game to Fox in 2007 and the completely erroneous details about inflation rates to ESPN for the Pats’ footballs in 2015. Someone within the NFL was leaking, and we’re led to understand the first leak exposed Goodell downplaying SpyGate whereas the second implicated the Pats unfairly (though real Pats haters should wonder whether that leak was correct and the entire Wells Report was a coverup).

But I also find it interesting this passage is explicitly sourced to Pats’ attorney Robyn Glaser, even while, in a key detail — whether anyone asked how many games had been recorded — it relies on (again, completely undescribed) “sources.” I’m also amused that the most important part of the passage — Goodell’s order to destroy the evidence — is in the passive voice:  “Goodell was contacted, and he ordered the tapes and notes to be destroyed.” Who contacted him? Was it on conference call, and if not, who is the sole witness to the claim that Goodell gave the order?

And if Goodell gave the order why did Pash offer to resign?

All of which brings me to a key detail in this story: that after protecting Goodell for years, Kraft was allegedly (according to a single source friend and another undescribed source) ready to review his tenure in the months before DeflateGate rolled out. Again, a key sentence — who asked Kraft when owners would review Goodell’s performance — remains agentless (another owner, someone like Mara, would be a possible source).

Shortly before this past Thanksgiving, as the league awaited a former federal judge’s decision on the appropriateness of the indefinite suspension Goodell had given to Rice, Kraft attended a fundraising dinner and, reflecting a sense among some owners, confided to a friend, “Roger is on very thin ice.” At the same time, according to another source, Kraft was still rallying support for the commissioner despite his increasing disappointments. Asked when the owners would likely discuss Goodell’s performance, Kraft replied, “We’re going to wait until after the Super Bowl.”

And then, on the eve of the AFC Championship Game, as Kraft hosted Goodell at a dinner party at his Brookline, Massachusetts, estate, a league official got a tip from the Colts about the Patriots’ use of deflated footballs.

So here’s another narrative, which is at least as interesting as the obviously false one that Goodell went so hard after Tom Brady as penance for fluffing the SpyGate investigation. In the months before Goodell and the NFL (including Pash) went overboard on the DeflateGate investigation, Kraft was openly talking about reviewing Goodell’s role, even while he was perceived as one of the Commissioner’s last protectors.

Did Goodell know that? Did that come up in that dinner the night before the AFC Championship? Did Pash know that?

Goodell — and, potentially, Pash — were on the verge of losing their job when they doubled down on Goodell’s biggest supporter. People are, even today, calling for Pash to resign. Now they’re just talking about restructuring the discipline process.

That’s at least as interesting a part of this story, even if ESPN isn’t all that self-aware of how this story serves the interests of those who’d like to keep their jobs.

Emptywheel’s Super Bowl XLIX Trash Talk

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Welp, here we are for our last regularly scheduled Trash Talk for the football season. It may be the biggest game of the year, but it is always a tad melancholy because it means no more football. On that note, off we go.

Super Bowl XLIX is right here in the Phoenix Valley of the Sun. Except that it has not been that sunny; in fact, the end of the week has been nothing but rain, starting Thursday and through all day Friday, and it is overcast again this morning as I write. The temperature has been quite moderate and comfortable, but the overcast and rain a real downer. Curiously, none of the fans I have run into, and there are a lot of those, seem to mind in the least; but as a local, I sure hoped for better. That said, all the parties and festivities seem to have gone off just fine, and of course the gorgeous VIP crowd, between all the limos and controlled indoor settings, probably never noticed. In short, so far, so good, despite the inclement weather. I have also had great fun seeing all the Squawkers in their vaunted “12th Man” shirts. To a tee, so to speak, I see them and say “Love yer Number 12 Tom Brady Jersey!”. So far, I have not been punched yet, but there is still time.

There are so many different things to do if you are here and a fan, and it is spread out over the valley. There was the NFL Experience set up at the Phoenix Convention Center Downtown, the seemingly continuously running Super Bowl street party in and around downtown central square, and also the simply idiotic looking huge “Bud Light House of Whatever”, that appeared designed for hollow 20 something twits. 10-12 miles northwest, in Glendale, by the actual University of Phoenix Cardinals stadium, were more stages and whatnot sponsored primarily by DirecTV. I know some of the pretty people were bussed out there, and promptly bussed right out of there as soon as they could. Cause no one with any shred of common sense parties in freaking Glendale when you could be doing it in Scottsdale. Come on man. That is just the way it is, and the way it has always been. And it will always be that way, cause Glendale is a bag of Chalie Brown’s rocks on Halloween. People with money and the appropriate je ne sais quoi wouldn’t be caught dead hanging in Glendale, and that won’t be changing anytime soon.

The fact that the game is in Glendale, but all the real playahs and money somewhere else actually has some real implications locally. Yes, it is what it is, but Glendale has a problem as a result. You see, Glendale is its own municipality; it is not Phoenix, and it sure as hell is not Scottsdale or Tempe. It has its own tax and spending obligations, and it has fucked it up royally, as my friend, and the always excellent, Travis Waldron of Think Progress details:

In a world in which American cities have handed over billions of dollars in public money to finance sports arenas and stadiums, there is perhaps one city that stands above the rest as a warning for what can go wrong when they do so. It just so happens that place is Glendale, Ariz., which will host Super Bowl XLIX this Sunday.

Glendale has spent liberally on sports in the past decade and a half, luring professional hockey, football, and spring training baseball with millions of dollars of its own money and plenty of help from the state. Sunday will mark the second time it has hosted the Super Bowl, and the game’s biggest proponents are, in typical fashion, making the argument that helped sell all of this sporting infrastructure that brought teams and events to Glendale in the first place: it will be a boon for the local economy.
….
The problem is that the Super Bowl almost certainly won’t generate $500 million in economic benefits for Arizona. Economic research has shown that for a variety of reasons — among them: a failure to account for costs, money that leaks out of the local economy, and money that would have been spent anyway or, in the absence of such an event, elsewhere in the city — Super Bowls and other mega-events and the publicly-funded stadiums built to host them virtually never have such an effect. They may provide minimal gains, and sometimes losses, to host cities, but they’re never major shots in the arm. Cities that believe otherwise, about stadiums or the events themselves, run the risk of major trouble.

Travis is right, the “economic stimulus” from major events like Super Bowls, NCAA National Championship games, in both football and basketball (both of which are here in the immediate future), are just never what they are cracked up to be when you factor in the hard costs to host cities. But, it goes a little further than even Travis lets on when the hard costs of the game itself, and ridiculous security therefore, are being paid by a, frankly, minor municipality like Glendale and the real big bucks are being spent in Scottsdale/Paradise Valley and Phoenix. And that, my friends, is exactly what is going on here.

And, then, there is Scottsdale/Paradise Valley. That is where the real players and action are. I live, literally, on the intersection of East Phoenix/Arcadia, Scottsdale and Paradise Valley. Even with an old rotator cuff, I can throw a rock and hit all of them. So, I went to all the glitzy parties and can tell you about them, right? Nope. For one thing, I just don’t care as much anymore, and certainly not enough to work it to get to them. But, secondly, the big money, and exclusivity, is so pervasive now that it is really hard, much more so than it once was, whether for Super Bowl XXX or even XLII.

I didn’t miss the Playboy, Victoria’s Secret or Jerry Jones parties in either of those, but trying to get into the equivalent this year was insane, and I am not going to pay to do so. You think bmaz is gonna pay $350 to go to a Scottsdale bar to hang with lowlife B-level celebs like Drake, Brody Jenner and some idiot, I never in my life heard about, named “William Lifestyle”? Uh, no. I wouldn’t pay a lousy buck to see that trashy shit like that. So, save for a one day pass I got into the ESPN live set gig at Scottsdale Fashion Square, about two miles down the road, I just didn’t partake in the festivities. (Couple pictures from that, here, here and here; featuring mostly my new friend, and totally awesome guy, Tom Jackson) Your Phoenix based Roving Reporter has failed you. Sorry about that. And, no, I won’t be going to the game either. Tickets are, in even the cheapest markets, going for $7,500 – $10,000 for any seat, and WAY more for a reasonable seat, to the game. If I had tickets, I would sell them and buy a new car, or a Cessna, or something.

Alright, let us get to the only thing that matters in a game between the two best teams in football. Deflategate. Roger Goodell was his normal sack of salted dicks self in his press conference here. What a bullshit joke. Goodell is an embarrassment. He and the NFL have ignorantly, stupidly, and against the interests of the league and the Super Bowl, weakly and cravenly not just allowed, but actively encouraged, the ginning up of the non-story of Deflategate into something that has consumed the oxygen of the Super Bowl. The only thing that matters to tight ass billionaire owner driven cracker like Roger Goodell is the money. First he looks at the purse. Players health, and fans’ desires are not even really on the list.

If that is not enough incompetence to get Goodell fired, on the heels of the ignorant and incompetent handling of the Ray Rice situation, I guess there is no such thing as incompetence to the beyond hubristic and arrogant NFL owners. As a fan, fuck that shit. Goodell and the vaunted “NFL Shield” are craven, self serving, pathetic reactionaries worried far more about covering their gravy train asses than being positive, proactive, forces for good in society. Oh, and by the way, their “evidence” and “investigation” is, once, as always, total shit. So far, the NFL has a an equipment manager that had the misfortune of taking a piss in a bathroom and a bunch of physics that even all the best scientists now admit actually could support the Patriots. What a load of sensationalistic crap. Without more (which Goodell and his crying ass stooge Ted Wells may well try to falsely gin up, same as the asinine “Mueller Report”), Bob Kraft, Tom Brady and BillBel are indeed owed an apology. As Bill Simmons said in a couple of tweets on Twitter:

The NFL is searching for a person of interest who dressed like a referee and didn’t write down the measurements of 12 footballs. We spent 3 days talking about a ball boy taking a piss. Meanwhile Walt Anderson was approving footballs with his gut feelings. What a farce.

Alright. As to the game. Yeah, sorry, there are no more cheap ass platitudes on the elusiveness and brains of Russell Wilson, the strength of the Squawks defense, the greatness of Brady and the brilliance of BillBel’s game scheming. It is all out there, but I am done with that tripe, cause at this point it is all bullshit. These are two different and both wonderfully constructed and coached teams. One will win, and one won’t. We’ll see.

Music today, at the top, is INXS. Irrespective of the team you support, sometimes you kick, and sometimes you get kicked (as lifelong Packers fan, trust me). Also, the Brady’s Balls AC/DC thing is really well done. Don’t miss the J. Geils I added late, cause it is everything. Lastly, I especially love the Favre and Carve spot (one of several related Wix spots), though, truth be told, Headmistress, and my boss, Ms. Wheel made me do it! So, thanks to one and all for a great football season. We will see you again when the start of the F1 Circus begins and/or the force moves us. You are, all, truly and always, the greatest.

Let’s rock this joint lug nuts! Gronk on bitchezz!!

Fitzgerald’s Successful Argument to Keep the Bush and Cheney Reports Out of Discovery

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Back in the discovery period leading up to Scooter Libby’s trial, Ted Wells made a valiant attempt–based on Fitzgerald’s notice that he was going to include reference to the insta-declassification of the NIE–to get Bush and Cheney’s interview reports in discovery. But, as far as I can tell from the available record, Wells failed. Fitzgerald argued that, so long as he was willing to stipulate that the leak of the NIE on July 8 was not illegal, then any discovery of the Bush and Cheney reports would count as Jencks, and therefore he would only be obligated to turn them over if the government called Bush or Cheney to testify.

Given the fact that Mukasey appears to have claimed he can’t reveal the reports for some crazy reason, I thought I’d lay out this argument. Nowhere does Fitzgerald explain that he couldn’t turn over the reports–only that he doesn’t think he has to, unless Judge Walton orders him to do so.

MR. WELLS: Your Honor, with respect to the issue of the NIE, as Your Honor knows, Mr. Libby testified that he had discussions with Ms. Miller concerning the NIE based on expressed instructions from the vice president and with the understanding that President Bush had declassified the document. This is a case that concerns unauthorized disclosure of classified material. To the extent that Mr. Fitzgerald is in possession of documents or grand jury material or interviews that establish that, in fact, the vice president and the president were aware that those documents had been declassified, he should turn them over because I do not want to be in a position during this trial that there is some question that Mr. Libby, in disclosing that material to Ms. Miller, did anything wrong.

THE COURT: But the government is not alleging any violation of the law regarding that.

[snip]

THE COURT: You are not challenging whether there was a declassification of that information at the time it was produced?

MR. FITZGERALD: We’re not challenging the declassification authority as of July 8. What he is asking now is Jencks. And that’s what we kept writing in our briefs, we don’t turn over Jencks material before trial. Now we’re asking for grand jury testimony. It is not an issue. The NIE is not mentioned in the indictment. Read more →

Scooter Libby, Still a Felon; the Unitary Executive, Still a Dubious Theory

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I agree with the surmise of many that Libby dropped his appeal, partly, because the damn thing was getting expensive. And given this passage from Ted Wells’ statement on why they dropped the appeal, I also think Harriet Grant once again drove the decision-making process.

However, the realities were, that after five years of government service by Mr. Libby and several years of defending against this case, the burden on Mr. Libby and his young family of continuing to pursue his complete vindication are too great to ask them to bear.

Shorter Harriet: You’ve already sacrificed your law license, your children’s adolescence, and your pride for these thugs. Let it drop, please.

But I’m really curious by this part of Ted Wells’ statement:

Mr. Libby has made the decision to discontinue his appeal in recognition that success on the appeal would lead only to a retrial, a process that would last even beyond the two years of supervised release, cost millions of dollars more than the fine he has already paid, and entail many more hundreds of hours preparing for an all-consuming appeal and retrial.

Um, no, not really. Remember, there were two parts to Libby’s appeal. First, the claim that Judge Walton should have made Andrea Mitchell testify, so Wells could undercut her credibility and therefore suggest she had told Tim Russert of Valerie’s identity and Wells could argue that NBC was just out to get Scooter Libby.

Had Libby won that appeal, we would have had a retrial, with all the same witnesses and evidence, plus Mitchell. That’s it. And he probably still would have been found guilty, since David Addington still would have testified that Scooter Libby knew Joe Wilson’s wife worked at the CIA two days before, Libby claimed, he learned it from Russert "as if it were new." Read more →