Nadler Does His Job

Today, Congressmember Nadler on behalf of the House Judiciary Committee filed a petition seeking release of the grand jury materials that were redacted from the Mueller Report. The petition argues that providing otherwise secret grand jury materials is authorized under the rule of criminal procedure that permits disclosure that is “preliminary to a judicial proceeding.” What proceeding? Read my lips: an “investigation regarding impeachment.”

Game on.

In a footnote the petition also states that the House Permanent Select Committee on Intelligence (HPSCI – Schiff’s committee) “is investigating the counterintelligence risks arising from efforts by Russia and other foreign powers to influence the U.S. political process during and since the 2016 election, including links and contacts between individuals associated with the Trump Campaign and the Russian government.” Evidence obtained through HPSCI’s investigation, presumably including the grand jury materials if the court will release them, will “further inform the Judiciary Committee’s consideration of whether to recommend articles of impeachment against the President.”

The 53-page petition reads partly like a technical legal brief, partly like a press release (and was accompanied by a news conference by Nadler and other Dem members of the Judiciary Committee), all but announcing that his committee had no intention of waiting for the House to adopt a resolution of impeachment before conducting proceedings, and that “facts developed and reported by an investigating committee of the House” could “set[ ] an impeachment in motion.” (citing Jefferson’s Manual) (yes, that Jefferson). I gather that Speaker Pelosi and he worked out the exact wording of the stand-up presser, but the meaning in the petition is clear.

The kicker for the Tweeter-in-Chief is saved for last: “More broadly, the President has commented extensively about the Special Counsel’s underlying investigation, including by denying critical events described in the Mueller Report…. Grand jury secrecy is not unyielding when there is no secrecy left to protect.”

PS Although I haven’t posted here in a long while, until Mark’s recent passing I had taken to occasionally sending him source documents on legal matters of mutual interest. He relished cutting through the legal gobbledygook and tweeting out quotes and links within minutes. This one’s for him.

Donald Trump’s War on Coal

Trump will oversee a much steeper fall in coal than Obama did.

“They want to be miners, but their jobs have been taken away. And we’re going to bring them back, folks.” – candidate Donald Trump on August 10, 2016, with similar statements on many other occasions.

In contrast, the Trump Administration action on this promise has been negligible. One regulation on water pollution from mines was reversed (idem). A proposal to subsidise coal on grounds of “grid resilience” was shot down in flames by a unanimous FERC, the majority of whose members are Trump appointees.

Derelict coal mine in Hashima, Japan

There’s been talk of a new plan using emergency powers and an entirely different and equally specious claim of national security, but the Deep State (i.e. Trump officials who still have two working neurones) have sidelined it.
Trump has appointed a key author of Plan A, Bernard McNamee, to FERC – but there is already a serious legal challenge to force him to recuse himself from taking part in decisions on his own proposals.

Meanwhile, the industry has continued to operate under Obama’s rules. Production actually increased a little in 2017, but this was entirely due to a temporary spike in Chinese imports. It fell slightly in 2018, tracking the slow decline in domestic demand. Jobs are holding up pretty well. At first sight, Trump can plausibly claim at least to have stopped the rot.

He has not. The first bad sign is an acceleration in closures of coal generating plants, an equal record 15 GW in 2018. Chart from IEEFA:

It doesn’t look too bad for the years ahead, does it? But in fact the firmly announced closures are the tip of a Titanic iceberg. There is much, much worse to come.

Continue reading “Donald Trump’s War on Coal”

Justice Department releases FISA warrant applications on Carter Page

My quick analysis:
400-something pages, mostly redactions, and the rest mostly boilerplate that gets repeated from application to application.
Still, what’s left is interesting. And, naturally, the documents make complete nonsense of the conspiracy theory Devin Nunes and his House Intelligence Committee Republican colleagues have been pushing.
Everything about the Steele Dossier – including Steele’s decision to talk to the press just before the election – was fully revealed to the court, and there was plenty of non-Dossier support for the idea that Page was acting as a Russian agent. Moreover, the extension applications continue to recite that the Bureau believes “Source 1’s” (that is, Steele’s) “reporting herein to be credible.” If the wiretaps conducted under the warrant had in any way disconfirmed Steele’s material, the Bureau could hardly continue to recite that Steele’s reporting was credible.
First application in October 2016, extended January, April, July. (90 days is the limit for a FISA warrant; an extension requires a new application.
Each application is signed by the FBI Director and the Attorney General (or substitute after the Sessions recusal). October and January applications are signed by Sally Yates as AG.
Last two are signed by Boente (April) and Rosenstein (July). Comey signs as FBI Director the first three times; Wray signs in July.
[Footnote: I was close to the parallel process for wiretap applications, requiring sign-off by an Assistant Attorney General. That was taken enormously seriously, the signature was not a rubber stamp. Each application was read in detail by someone on the AAG’s personal staff, and more than one application was sent back or refused outright. Hard to believe FISA applications aren’t taken comparably seriously.]
Presumably much of the redaction is about the product; every extension has to show that the previous 90 days were productive. The Times counted pages: 66 pages  in the original, while the extensions counted 79 pages, 91 pages and 101 pages, suggesting that there was significant product. But that was already clear from the fact that the extensions were requested and granted. Courts frown on continuing to drill dry holes.
Basis of the first application was the FBI belief that Page was “collaborating and conspiring with the Russian Government” and that “the Russian Government’s efforts [to mess with the campaign] were coordinated with Page and perhaps other individuals associated with Candidate 1 [Trump]
Can you say “No collusion”? I was sure that you could.
Update: Leah McElrath points out that this assertion – like the assertion of the reliability of Steele’s reporting – is repeated verbatim in the three extension applications, which it couldn’t be if the wiretaps had failed to confirm it. More detail from Twitter account @PwnAllTheThings.
The application recites that Carter was a knowing intelligence agent, recruited by three named SVR officers acting under Non-Official Cover, one of whom, Buryakov, was arrested in January 2015 and pleaded guilty to a violation of the Foreign Agents Registration Act (FARA) by acting as an unregistered foreign agent in May 2016, getting 30 months.
Page’s mission is said to have been “clandestine intelligence activities (other than intelligence gathering activities).” If that applied to Buryakov, that might explain why he was charged with a FARA violation rather than the more serious charge of espionage.
Comic relief: In February, 2017, Page asks the Voting Rights Section of the Civil Rights Division to investigate whether the Clinton campaign had engaged in “severe election fraud”  involving “disinformation, suppression of dissent, hate crimes, and other extensive abuses” by saying mean things about Page.
Conclusion: The warrant was issued on the basis of the FBI’s belief that Carter Page, a Trump adviser, was knowingly working for the Russians, and that other Trump campaign personnel might be doing the same. It was then extended three times, strongly suggesting that the taps yielded, and continued to yield, valuable counterintelligence. And the terms of those extension applications strongly suggest that the Steele Dossier, and the claim that Page was conspiring with Russia to help Trump, kept looking good.
It gets harder and harder to credit the good faith of anyone who still insists that there is doubt that Russia, as a matter of national policy, interfered with the 2016 election to secure victory for its favored candidate, and that at least one Trump campaign official knowingly helped.

We Have All Been Here Before

Article 2 of the articles of impeachment against Richard Nixon charged him with:

Using the powers of the office of President of the United States . . . in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.

Among the particulars was this:

This conduct has included one or more of the following:

  1. He has, acting personally and through his subordinates and agents, endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be intitiated [sic] or conducted in a discriminatory manner.

Today, the Washington Post has reported that:

President Trump has personally pushed U.S. Postmaster General Megan Brennan to double the rate the Postal Service charges and other firms to ship packages, according to three people familiar with their conversations, a dramatic move that probably would cost these companies billions of dollars.

I am certain that Trump’s apologists will seize on the phrase “and other firms” to argue that Trump was only attempting to push a policy that would reduce the federal government’s deficit.


It Now Comes to This

Five days ago, I suggested a quick way to get to at least part of the truth in the Trump/Daniels matter by suggesting documents that the White House press corp could demand be released by Trump.  At the time, I assumed that Michael Cohen’s limited liability company, Essential Consultants L.L.C., was a shell entity formed exclusively for the single purpose of hiding the payments going to Daniels.  As of today, thanks to Ms. Daniels’ attorney, Michael Avenatti, we now know that Cohen used Essential Consultants for numerous transactions with connections to Russian oligarchs and involving over $4.4 Million.

Avinatti is about as shameless a self-promoter as, well, as Trump himself.  Not surprisingly, he reminds me of the young F. Lee Bailey when Bailey was in his prime. He often promises, in breathless tones, more than he can deliver.  But not tonight.  Again, I provide a link to his press release of this afternoon.  Take a look.  The degree of specificity is  amazing. This evening, the NYT confirmed most of the facts set forth in the release.  Even if 1% of what’s in there is true, Cohen has some major league problems.   And, if Cohen has some major league problems, well, I don’t have to tell you the rest.

One cannot “avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else.”  U.S. v. Hubbell, 530 U.S. 27, 36 (2000).  Moreover, it is questionable whether a single-member LLC, such as Essential Consultants, can even assert the Fifth Amendment privilege against self-incrimination.  Lila L. Inman, Personal Enough for Protection: The Fifth Amendment and Single-Member LLCs, 58 Wm. & Mary L. Rev. 1067 (2017).  All of the documents and instruments evidencing the payments described in Avinatti’s release would, without any question, be properly subject to a subpoena in an appropriate proceeding. What then would be an “appropriate proceeding”?

There is no question that a Congressional inquiry is appropriate here. Let’s not put too fine a point on this.  We have a president who, because of his associations (Manafort, Flynn, etc.), could never pass a background check for a security clearance.  Now, we have evidence that suggests that Trump’s personal attorney was deeply involved financially with Russian oligarchs.   The same attorney paid off a porn actress on Trump’s behalf.

This is no longer a question of some technical violation of campaign funding laws.  Rather,  the question has now become: Is the President of the United States compromised because Russians funded the Daniels payoff?  Can Congressional Republicans continue to look away from what may very well be the greatest scandal in U.S. history?

Why today’s indictment is very bad news for Trump and Congressional Republicans

There’s a tendency – obviously from Trump and his lickspittles, but also from usually sensible outlets such as VOX – to claim that today’s indictments are “good news for Trump” because, while they mention that some Americans, including some people on the Trump campaign, were unwitting purveyors of Russian fake news, they doesn’t charge any American with consciously collaborating with the Russian attempt to undermine our election.

This reflects in part an elementary failure of logic: obviously, “Some Americans were duped” does not imply “No American conspired.” And in fact the indictment recites that the three entities and thirteen individuals charged had “known and unknown co-conspirators.” Deputy AG Rosenstein chose his words carefully when he said, twice, that “there is no allegation in this indictment” about collusion, rather than saying that the investigation hadn’t found collusion.

But Matt Yglesias makes a different and possibly more important point, which might be unpacked as follows:

* The indictment charges a series of crimes.
* Presumably Mueller has evidence of those crimes.
* Donald Trump, Devin Nunes, Chuck Grassley, and others have been denying that such crimes had been committed, and doing their utmost to interfere with attempts to investigate them: denouncing the investigation as a “witch hunt;” firing Comey; trying to discredit Mueller, his team, and the FBI agents working with him; demanding criminal prosecution of Christopher Steele for blowing the whistle.
* Mitch McConnell used threats to prevent Obama from exposing the crimes while they were being committed.
* Insofar as it can be shown that any of those folks were aware of the truth, and of the import of their actions, they can be charged with obstruction of justice, even if the actual criminals can’t be extradited and therefore never face trial.

We’re much closer to the beginning of this investigation than to its end. Fasten your seat belts; it’s going to be a bumpy ride.


On arguing with fools, and Prof. Ann Althouse in particular

There’s an old Yiddish expression that translates roughly:

“Never argue with a fool. People might not be able to tell the difference.”

That’s good advice, and the fact that I ignore it too often is, I confess, an error and a fault.

But there’s also an old English expression of equal authority:

“In for a penny, in for a pound.”

So having foolishly engaged via Twitter with Prof. Ann Althouse of the University of Wisconsin Law School, and having attracted counter-fire not only from the good Professor herself but from her even less adept colleague Prof. Glenn Reynolds of the University of Tennessee Law School, it seems wise, just this once, to respond at some length. Don’t read on unless you have a prurient interest in folly, or in trolling, the bastard child of folly born of its occasional dalliance with intellectual dishonesty.

Continue reading “On arguing with fools, and Prof. Ann Althouse in particular”

Why the 25th Amendment won’t save us

Since an unsustainable situation won’t go on forever, it seems that something will have to put an end to the Trump (mal)Administration. But what?

He could be removed from office by impeachment and conviction, and that’s obviously the right course of action. But – for the moment – it’s equally obviously infeasible politically.

He could also – once Mueller has done his job – be indicted for and convicted of a variety of crimes, but there’s some doubt as to whether a sitting President can be indicted. (I think he can, since the Constitution does not protect him as it protects Members of Congress, but there’s no precedent and therefore no authoritative statement of the law.)

On the other hand, he could clearly be indicted for state crimes by state prosecutors, and the New York AG might have the nerve to do it and the skill to obtain a conviction. That little-discussed option might be the actual outcome, but it’s not on the horizon right now.

All this has led a number of smart people (James Wimberley,  Ross Douthat) to start thinking about the Twenty-fifth Amendment option (hereinafter “25A”).

Continue reading “Why the 25th Amendment won’t save us”

A long-overdue letter to the editors of the New York Times

I wrote this today in response to an editorial decrying “Two Presidential Candidates Stuck in the Past.”

Thank you so much for continuing the Times’s pattern of false equivalence between Donald Trump and Hillary Clinton which did so much to elect the former and besmirch the latter. Trump’s pathological need to tell whoppers at campaign rallies instead of governing is not at all the same as Clinton’s factual answers to a reporter’s questions. There is no doubt that James Comey’s October surprise re-opening of the e-mail investigation damaged her election prospects, nor is there any doubt that Russia interfered on her opponent’s behalf, though direct complicity by the Trump campaign has yet to be proven.

The editors’ instruction to Clinton to stop talking about the election sounds a lot like, “Women should be seen and not heard.” I look forward to your issuing a similarly stern warning to Bernie Sanders, who continues to peddle his fraudulent claim that Clinton “stole” the primaries by defeating him. Until you do, I’d be grateful if you’d stop pretending that Clinton’s telling the truth is somehow the same as Trump’s lying.

“Your papers, please”

My friend Jeremy Paretsky – whose sermon on the knowledge of God was posted here some time ago – is now the Sub-Prior (administrator) of a small Dominican Order house in New York.  A man who works for him – a legal permanent resident of the United States, the father of two natural-born U.S. citizens – just had a deeply troubling experience with Donald Trump’s “unshackled” ICE. He was stopped for no reason other than his appearance, treated rudely, manhandled, held for interrogation for 90 minutes, and finally released without any apology or explanation other than that the stop was “routine”: which implies that it could be repeated at any time.

In the movies of my childhood, the cold-faced men demanding “Your papers, please” had German or Russian accents.  I preferred it that way.

This event makes me think that whatever the shackles were, they need to be put back in place.  Fr. Paretsky’s letter to Sen. Gillibrand follows.  I can provide his contact information to any journalist or lawyer who would like to follow up.

The good news is that Sen. Gillibrand has offered to help. The bad news is that the victim of this outrage – I repeat, a legal permanent resident of this country, who has been accused of no wrongdoing of any kind – is too afraid to allow his name to be used.  In the United States of America.

Footnote Do you routinely carry documents proving that you’re a U.S. citizen? Neither do I.

Continue reading ““Your papers, please””