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Fiendish Thingy

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Member since: Mon Sep 6, 2004, 12:00 PM
Number of posts: 13,777

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Emptywheel: The Thinness of the January 6 committee's Obstruction referral


don’t so much mind that the Committee made these referrals. But I think they did a poor job of things.

For example, they don’t even consider whether Trump is exposed for aiding and abetting the actual assaults, something that Judge Amit Mehta said is a plausible (civil) charge against Trump. Some of the Committee’s evidence, especially Trump’s foreknowledge that the mob he sent to the Capitol was armed, would very much support such a charge. If Trump were held accountable for something like the tasing of Michael Fanone it would clarify how directly his actions contributed to the actual violence.

I’m also mystified why the Committee referred the obstruction conspiracy under 371 without consideration of doing so under 1512(k), even as DOJ increasingly emphasizes the latter approach. If DOJ’s application of obstruction is upheld, then charging conspiracy on 1512 rather than 371 not only brings higher base level exposure (20 years as opposed to 5), but it also lays out enhancements for the use of violence. If this application of obstruction is upheld, by charging conspiracy under 1512(k), you have a ready way to hold Trump accountable for the physical threat to Mike Pence.

It’s in the way that the Committee referred the obstruction charge, however, I’m most disappointed. This referral matters, mostly, if it can be used by DOJ to bolster its own defense of the statute or by a sympathetic judge to write a compelling opinion.

And this referral is weak on several counts. First, even with evidence that Trump knew his mob was armed when he sent them to the Capitol, the referral does not incorporate emphasis that the David Carter opinion they rely on did: That Trump (and John Eastman) not only asked Mike Pence to do something illegal, but then used the mob as a tool to pressure Pence.

Much, much more, with evidence and receipts, at link above.

Marcy goes into great detail how the committee’s referral omits or ignores the stringent judicial standards for prosecuting obstruction, standards which the evidence gathered by the committee clearly shows has been met.

Hopefully, DOJ will feel free to ignore the committee’s framing of their obstruction referral, and proceed with their own, more judicially sound, prosecution.
Posted by Fiendish Thingy | Tue Dec 20, 2022, 12:31 PM (9 replies)

Emptywheel: the pluses/minuses of a Special Counsel

Marcy has mixed feelings, but as usual, provides a balanced analysis.


To my mind, the best part of appointing war crimes and public corruption prosecutor Jack Smith as Special Counsel to oversee the twin investigations into Donald Trump is that it will be a cinch, now, to subpoena Ginni Thomas.

Otherwise I have mixed feelings about the decision. I think the letter of DOJ guidelines requires it. But I don’t think it will change how much of a clusterfuck Trump makes of it.

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

It will ensure the continuity of any prosecution after 2025, no matter who is elected (neither hypothetical Trump prosecution — the stolen documents or the coup attempt — would be done by then, even if it were indicted on December 15, the earliest possible day for either).

I don’t think this will create much of a delay. The stolen documents case, which is the first that could be prosecuted (assuming the 11th Circuit overturns Judge Aileen Cannon’s special master order) is fairly self-contained, so would only take a day to be briefed into. The coup attempt is far, far more complex, but I think there was no way Trump himself would be indicted before February or March anyway, probably longer.
Mostly, I think this is an “Eh” decision. It doesn’t change Garland’s role in the process. I don’t think it delays things. I think it carries certain ad advantages, two of those named Ginni and Jim.
Posted by Fiendish Thingy | Fri Nov 18, 2022, 04:35 PM (7 replies)

Looks like Manchin and Sinema are joining the economic terrorists to hold debt ceiling hostage

And kill SS and Medicare:


I can hardly believe this. I guess Joe Manchin really has decided that he wants to work with Republicans to cut social security and Medicare — and god knows what else. Sinema and some others as well. So this is where we are:


The White House has largely given up hope of Congress raising the nation’s debt limit during the lame-duck session that runs through late December, increasing the risk of a highly partisan, market-rattling fiscal confrontation next year.

Senior administration officials see little chance of attracting any Republican votes for a bipartisan debt limit hike during the short session. And they don’t believe they have the 50 Democratic Senate votes needed to slam through a hike using the budget reconciliation process that would allow them to avoid a Republican filibuster.

Already, Manchin has expressed reluctance to act on the debt limit with only Democratic votes, though he’s declined to rule it out completely.

“I don’t think it should go to reconciliation,” he said Tuesday. “My goodness, it’s something we’ve always worked together on.”


P.S. Joe Manchin is a fine American statesman (because that’s all his fan club will allow me to say)
Posted by Fiendish Thingy | Wed Nov 16, 2022, 09:25 PM (12 replies)

Merrick Garland hasn't done the specific thing you want because...

DOJ is busy doing the things they have to do first.


The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Much, much more at link, with supporting links and evidence.
Posted by Fiendish Thingy | Mon Nov 14, 2022, 01:25 PM (56 replies)

Nate Silver puts 538's reputation on the line with last minute hedging and a shrug.

Here’s Nate’s long-winded apologia from yesterday where he essentially says they’ve been manipulated by the flood of recent shitty R polls, but since they’re in the prediction business, they’re going to predict any way:


And here’s today’s article, where he continues to hedge, basically saying “anything could happen, but whatever happens, we were right”:


I know he’s obligated to ABC to provide clear, numerical predictions to drive the dumbed down horse race narrative, but with all the anomalies this year, not just in polling, but in so many other factors, it would have been more honest to use 538’s reputation to say an accurate prediction was impossible to make this cycle.
Posted by Fiendish Thingy | Tue Nov 8, 2022, 05:15 PM (35 replies)

Ali Velshi: To Tell The Truth

Posted by Fiendish Thingy | Sun Oct 30, 2022, 02:20 PM (3 replies)

I will NEVER donate via Act Blue again.

Last week, I made several small dollar donations to numerous 2022 Dem candidates via Act Blue. There were links from Daily Kos to Act Blue pages “bundling” donations to house candidates running for seats in the most “winnable” districts, as well as pages with donations targeting critical senate, AG and SOS races.

I entered my information, including my US passport number (since I live in Canada), submitted my donations, and thought all was well and good.

I got confirmation emails thanking me for my donations, listing all the candidates I had donated to.

The problem is, several of the entries of candidate donations, including Stacy Abrams and several others (probably 20-25% of all candidates) were listed as “not processed”. The only reasoning I could think of was the candidate’s own software scanned my Canadian address, but not my US passport number (or Act Blue didn’t provide it), and declined the donation as coming from a foreign citizen.

It gets worse.

When entering my information, I made sure to select the “one time only” button, and especially the “don’t email me” box.

Everyday since I made the donations, I have received up to 10 emails and 10 texts from various Dem candidates, some of whom, like Henry Cuellar, I specifically didn’t donate to.

I have had to click the “unsubscribe” link on each email which takes me to another page, which I must make an additional 1-3 clicks before I am truly unsubscribed (my experience with other emails is that just clicking “unsubscribe” is enough to end the unwanted email). It’s a major PITA.

I have come to the conclusion that one way Act Blue makes money is by selling their donor lists.

I will NEVER donate via Act Blue again.

From now on, I will only donate directly to candidates I want to support.
Posted by Fiendish Thingy | Thu Sep 15, 2022, 03:46 PM (21 replies)

DOJ's likely strategy to appeal/nullify Cannon's ruling:


Marcy Wheeler of emptywheel agrees.
Posted by Fiendish Thingy | Tue Sep 6, 2022, 12:03 PM (20 replies)

Special Master: unclutch your pearls, unwring your hands

Today’s corrupt ruling by an incompetent lower court judge is not a done deal.

The written ruling was issued on a holiday, when DOJ couldn’t file an immediate appeal.

I don’t expect DOJ to roll over, hand back all the seized documents, shrug, and say “as you wish”.

I DO expect DOJ to seek a stay pending appeal, and keep possession of the seized documents.

I DO NOT expect a Special Master to be named anytime soon, until after appeals are exhausted and the elections are over.

At WORST, I think DOJ might settle for submitting the non-classified documents already “filtered” by their team to a special master for review for attorney client privilege, NOT executive privilege.

The maintenance crew at DU is gonna have to recharge all the extinguishers, since I’m sure they’ve all been used up on all the folks running around with their hair on fire…
Posted by Fiendish Thingy | Mon Sep 5, 2022, 08:40 PM (64 replies)

Emptywheel: the Elements of The Offense for an 18 USC 793e Prosecution


Excellent overview of the questions a jury would be asked to find in order to convict Trump of violating that section of the Espionage Act.

Back on August 10, I did a post laying out the elements of the offense from some pattern jury instructions for 18 USC 793e, which is what a judge would instruct a jury to consider if the Trump document theft ever went to trial.

I want to update with contents of the affidavit that so that others understand how things like the June 3 meeting at Mar-a-Lago were not only an attempt to get the stolen classified documents back, but were, short of doing so, a way to establish probable cause in the event that Trump would not cooperate. These efforts would overcome the real challenges — laid out in this WaPo article — of holding a former President accountable.

Key to holding Donald J. Trump accountable for the theft of classified documents will not be, as it is in most cases, reference to the multiple Non-Disclosure Agreements that cleared people have to sign (for the reasons the WaPo laid out). Instead, it would be to show that the President Records Act required Trump to return every Presidential Record, classified or not, and that because he did not have clearance after he was no longer President nor (according to Joe Biden) a need to know, he could not retain any NDI. Given the atrocious conditions under which he kept this stuff at Mar-a-Lago and his refusal to fix that, the guidelines on retaining classified information (which are cited in the affidavit) would also be key.

Here’s what jurors would be asked to decide:

Much, much more at link.
Posted by Fiendish Thingy | Fri Aug 26, 2022, 09:31 PM (3 replies)
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