Friday, May 08, 2020
The ongoing scandal of what is legal....
Absolutely right. But, that is because, such offense as " breach of trust" doesn't exist in the federal codes ( to my best knowledge, but exists somehow in other states in the US). In Canada for example, I quote ( article 122 to their penal code):
Breach of trust by public officer
122 Every official who, in connection with the duties of their office, commits fraud or a breach of trust, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
So, such offense is warranted in every penal code. Gives the judge and prosecutors, residual offense, to criminalize such abuses of power, having no strict factual definition.
On the other hand, not to forget:
Legality, is extremely important. Vagueness is absolutely unconstitutional. An offense must be defined very clearly. Otherwise, one person, wouldn't know, what conduct is permitted, what not. And, it shall grant prosecutors or police officers, power, to abuse in arbitrary and capricious manner, innocent persons, or not. Doesn't matter.
Here to the decision/ opinion ( Kelly):
Here to the penal code, of Canada:
Just quoting(concerning vagueness v. legality )from The people v. Jason Alan,here:
Further, a vague law invites arbitrary and discriminatory enforcement. (Ibid.) In McBoyle v. United States (1931) 283 U.S. 25, Justice Holmes explained that vague statutes are prohibited because “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” (Id. at p. 27.) The vagueness challenge here requires us to decide whether an order that defendant “stay away” from a specified location establishes a limitation clear enough to be constitutional.
Here, getting really closer, to " breach of trust " or alike. New York Penal law, I quote:
Article 195 - NY Penal Law
S 195.00 Official misconduct.
A public servant is guilty of official misconduct when, with intent to
obtain a benefit or deprive another person of a benefit:
1. He commits an act relating to his office but constituting an
unauthorized exercise of his official functions, knowing that such act
You've clearly failed to understand what happened here.
The conduct in question may or may not be criminal, probably was. But it didn't meet the predicates of the offense the defendant was charged with. That means, like it or not, the defendant was innocent as charged.
It isn't the job of the courts to say, "Sure, the defendant didn't commit the crime you charged them with, but they're generally awful and probably committed THIS crime you didn't charge, so, GUILTY!"
Like, if I dress up like a movie monster and jump out of the bushes in the morning when my neighbor, (Who has a heart condition.) goes to get the mail, and she ends up in the hospital, that's assault. But if the idiot prosecutor charges me with "battery", and I didn't touch her, I'm innocent, because "battery" is a crime of improper touching.
If you've got to be mad at somebody, get mad at the prosecutor.
Now, specifically Flynn.
For reasons which are as yet unclear, the outgoing administration really, REALLY did not want him in that position. Warning Trump that it was a bad idea to appoint him didn't work.
Well, the administration had been in place for 8 years, so even after leaving had a lot of influence of the the DOJ, that's normal. So the FBI set out to entrap Flynn in a perjury trap, to get him fired. "Interviewed" him without warning, letting him think it was just a transition discussion, and then decided, after the fact, to charge as perjury what the interviewing agents had thought was just a failure of recall.
And then proceeded to bankrupt him with legal expenses, and threaten his family in order to get a guilty plea which would spare them the need to prove their case.
The problem is that, eventually, the outgoing administration loses its influence over the DOJ, and the perjury trap started falling apart when people who didn't have any reason to keep it clamped shut got into a position to see what was going on.
And now we have iron clad proof of prosecutorial misconduct, and at least one of the prosecutors has had to remove himself from ALL the cases he was involved in, a sure sign the DOJ expects this prosecutor to be fired for cause shortly.
Mind you, none of this is speculation. It's all been proven from records and testimony. We really do know that the interviewing agents didn't think Flynn had lied. We really do know the prosecutor committed serious misconduct. We really do know that they were trying to get Flynn fired.
Most of that doesn't get reported in media outlets politically aligned with the prior administration, because they'd really like this case being dropped to be some sort of whitewash. But it's actually pretty clear that Flynn was deliberately targeted for a malicious prosecution, and it's been clear for some time. All that happened this week is that it went from "clear" to "unambiguously proven".
"How difficult would it be to put together a “long train of abuses” of contemporary government in the US?"
Quite easy. "Unqualified immunity" would probably head up the list.
"For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:" Lon Horiuchi, anyone? He's got plenty of company.
"For depriving us in many cases, of the benefits of Trial by Jury:" Almost all trials today are plea bargains, and that's no accident.
I suppose the particulars would differ, depending on whether it was written from a left-wing or right-wing perspective, but it would be a long list in either case.
"As usual, everything Brett describes about the Flynn case is completely false or misleading"
Denial ain't just a river in Egypt.
Prosecutor of ex-Trump aide Michael Flynn withdraws from case amid controversy over documents
"A top prosecutor removed himself Thursday from the criminal case against former national security advisor Michael Flynn, as well as from at least two other court cases involving Flynn."
Among the documents which just surfaced lately, was a hand written note, reading in part, “What’s our goal? Truth/Admission or get him to lie, so we can prosecute him or get him fired?”
The whole thing started from the beginning as a effort to get him removed.
"So the FBI set out to entrap Flynn in a perjury trap, to get him fired."
Mark is correct of course. Flynn was demonstrably, and by his own admission, a literal foreign agent. He lied about that to the FBI. The agents musing about whether they should let him lie or continue with his subterfuge is only exciting for the conspiracy theory inclined (Birchers).
Let's be clear here: if a Democrat administration had a NSA head that was a *literal foreign agent* and had not complied with the law regarding that and lied about his foreign interactions, Bircher Brett would be *going nuts* with outrage. This is the least self-aware partisan in the universe.
What you are discussing is known as lawfare - the weaponization of criminal law against political opponents.
The practice has a long and ugly history in socialist and fascist nations, but the term was coined when terrorists, with the assistance of our leftists, made false war crimes charges against our troops.
Over the years, lawfare prosecutions have increasingly targeted Republican political figures, which were later dismissed by Justice after their wrongdoing was exposed or reversed on appeal. See, for example, Ted Stevens, Tom Delay, the Bridgegate defendants and Gen. Flynn. Republicans are not blameless. See Nixon's investigations of political opponents.
By far, the worst known American example of lawfare was the Obama administration's FBI/NSA spy operation against Trump and his campaign, followed by the special and very questionable prosecutions by Mueller and his merry band of Democrats.
The persecution of Michael Flynn were archetypical examples of lawfare and a perjury trap. With the intent of sidelining Flynn (“What is our goal? Truth/Admission or to get him to lie, so we can prosecute [Flynn] or get him fired?”), the FBI asked Flynn to speak with them without an attorney about a perfectly legal conversation with a Russian diplomat which was not material to any legitimate investigation. When Flynn made conflicting statements to the FBI, the FBI brass ignored and hid the interviewers' opinion the General was not lying, and launched a criminal prosecution. During the prosecution, the FBI hid all of the above evidence from the defense. When Flynn resisted the plea offer, Justice threatened to prosecute his son. Only through the exemplary efforts of his new attorney was the truth finally disclosed and a humiliated Justice Department moved to dismiss for lack of evidence.
Is there any remedy for lawfare beyond short lived humiliation? We are about to find out. US Attorney John Durham began a criminal investigation of the Obama spy operation and then the Mueller special prosecutors some months ago, started calling witnesses before a grand jury and is reportedly considering indicating the perpetrators turned Democrat media talking heads for conspiracy to defraud the United States (for providing false information to the FISA Court and FBI), lying to the FBI (providing bogus information to the FBI to start the spy operation against Trump & Co) and obstruction of justice (lying to Congress).
Sufficient evidence to support prosecution of these actual crimes is already in the public realm. The question is whether the Justice bureaucracy will actually go through with prosecuting their own to stop this increasing totalitarian abuse of power.
"What you are discussing is known as lawfare - the weaponization of criminal law against political opponents.
The practice has a long and ugly history in socialist and fascist nations"
Let's remember that Bircher Bart was totally fine with this re Hillary and Biden.
"was the Obama administration's FBI/NSA spy operation against Trump and his campaign,"
Lol, we had extensive discussions about FISA rules back in the Patriot Act days, and Bircher Bart donned his knee highs and grabbed his pom poms and of course cheer-leaded for it back when the GOP pushed it. I'll be more than happy to re-publish his now embarrassing comments on it!
Mr. W: Let's remember that Bircher Bart was totally fine with this re Hillary and Biden.
When exactly was Hillary Clinton prosecuted based on the literal reams of evidence she violated the Espionage Act over a thousand times and for obstruction of justice for lying to Congress? She is the reverse example of lawfare - the failure to prosecute the political class for the crimes they committed.
Biden is a worse example - the failure to even investigate prima facie evidence of crimes committed by the political class.
we had extensive discussions about FISA rules back in the Patriot Act days, and Bircher Bart donned his knee highs and grabbed his pom poms and of course cheer-leaded for it back when the GOP pushed it.
I believed the FISA court would be an adequate check on the government spying on political opponents and specifically asked Marty and others here for examples of the Bush administration abusing the FISA court to spy on political opponents. They could not provide any.
However, with the disclosures of the Obama spy operation against Trump and his campaign, I have many examples of abuse and have now revised my position - the FISA court should be abolished and the perps in Obama spy operation prosecuted to the fullest extent of the law. Tellingly, the same professors who were decrying a "national surveillance state" when these tools were in the hands of the Bush administration are completely silent in the face of actual domestic spying by a Democrat administration.
I will focus on the Bridegate opinion.
There has some concern that the Supreme Court has been too narrowly interpreting corruption (including financial related) laws and perhaps they have in some sense. (See, e.g., the Skilling case.) I don't know. But, it seems to be granted that the ruling here is a fair application of the specific law.
There is a concern that there is not justice here in a wider sense ("can you do me a favor, though" ... yes, I get the idea). But, that too should not be handled with too much pessimism. There have been a lot of governmental officials in recent years that have been in a variety of ways (including criminal and civil) had their comeuppance.
Take this specific situation. The opinion explains how three people were fired. One was prosecuted (plea bargain) separately & the prosecution appears to still be valid generally speaking even if the plea was not in place. The other two might have be liable under other laws. And, Gov. Christie himself had political consequences from the whole matter. It is partially why he does not have a national role in the Trump Administration other than someone who got McDonalds for him or something. It hurt his campaign for president too though other things did as well.
There is some valid concern that the courts can block accountability in various instances but I dissent from the level of pessimism or whatever expressed here.
The Mike Flynn thing to me is separate and is a reflection of the current rot in the Trump Justice Department. The political nature of prosecutors (many attorney generals are elected) is a mixed bag -- there is some accountability as a result, but there is also a dark side. The hesitance to prosecute in certain cases is a good thing; prosecutorial discretion is both sound policy and at times the road to justice. Other times, it is the road to injustice.
The career FBI agent/Bush appointed chief, Vietnam vet etc. led Mueller Report can be read for help get a sense of Mike Flynn's overall role in the large picture as can other accounts. It is somewhat amusing we have some arguing Robert Mueller here was reckless (will he start singing ala Les Miserables?) while some others are rather upset he was so conservative (including not bluntly coming out supporting indicting Trump among other things).
The wider picture is useful here, including wider methods of accountability. I recall, e.g., the whole debate a decade ago over John Yoo on this blog. That was depressing, huh?
Joe: The career FBI agent/Bush appointed chief, Vietnam vet etc. led Mueller Report...
The Bushies are at war with Trump as well and, as his clueless performance before Congress demonstrated, Mueller was a figurehead who probably did not read the report before it was published. His Democrat deputy likely wrote the report, which violated every prosecutorial ethic about slandering targets against which there is not sufficient evidence to charge.
I very much appreciate the comments about the importance of notice and the concomitant problems with "vague" criminal statutes. As someone who cherished the opportunity to study under Anthony Amsterdam at Stanford, I share the antagonism to vague statutes that can be used to enmesh the unwary. That's why I make no effort to criticize the Court's (unanimous) decision, which indeed brought the bitter sides together. But I think it is also important to attend to the political-constituitonal rot that accompanies the capture of political institutions by Holmesians who will literally do almost anything, regardless of what might be thought, naively, to be ordinary imperatives of forbearance, in order to attain their ideological objectives. I don't really think that rewriting our statutes would necessarily help. As Jack and Mark Graber both insist, we're really talking more about constitutional culture and the huge difference between what I've labeled a "Publian sensibility" and the unrestrained Holmesian "ban-manism" that is on display for all to see in the Trump Era.
The reply to the comments is fair enough as a whole.
But, to be clear, there was a "price to pay" in this case.
"have now revised my position "
Lol! This is a person who still argues that the Iraq War was justified re WMDs so this is no small concession. Of course, I was telling this fool he was wrong on this years ago.
I am the person who was more than willing to put his own ass on the line as an infantry platoon leader to finish off the Butcher of Baghdad during the first Gulf War, rather than abandoning the half million Shia he slaughtered and then dealing with all the jihadis he imported after we left.
To you, this was all an internet game of gotchya.
Who again is the unserious person?
Back to lawfare...
Adam Schiff has refused for months to release the transcripts of the sworn testimony taken in the SCIF to make it classified and threatened GOP Congress critters who attended with sanctions if they disclose the testimony. Trump's new DNI told Schiff to pound sand and is in the process of making the transcripts public, although many are currently leaking into the conservative media.
Of special note from the leaked materials...
(1) Crowdstrike is the Dem contractor who claimed the Russians penetrated then Clinton/DNC computers, then removed emails and other documents and provided them to Wikileaks. The Obama FBI never verified this claim by examining the computers and instead the Obama intelligence agencies simply accepted the Crowdstrike report without question. Once placed under oath, though, Crowdstrike's Shaun Henry admitted they can usually determine whether data was removed and did not find those indicators on the Clinton/DNC computers.
(2) Obama administration intelligence analyst, Evelyn Farkas, was one of the apparatchiks touring the Dem media claiming the government possessed and was preserving evidence of Russian collusion. Under oath and cross examination by Trey Gowdy, Farkas admitted she had no knowledge of any evidence. This liar is currently running for Congress in NY.
In sum, there was no substantive evidence the Russians hacked the Clinton/DNC computers or that Trump "colluded" with them to do so. The entire pretext for three years of spying and unrelated political prosecutions were lies.
Only posting to point out egregious error here. There is no way to conclude that data was "removed" (which, in itself, is an inane description for what was, after all, "copied" -- to refer to data on computers being "removed" displays an incredible ignorance). Any reasonably competent hacker can reset the "accessed" time of a file after copying.
Since the data showed up on Wikileaks, there's no question as to whether it was copied. There's no need to examine the actual computers on which the files were kept, obviously. The only question is by whom? And on that the intelligence community has spoken with rare unanimity. (We also note that the intelligence community didn't need to examine the actual computers...) But short of an admission by the actors involved, there can be no "proof" (and personally, I doubt sincerely that even an admission would convince the diehard deniers...)
C2H5OH said...Since the data showed up on Wikileaks, there's no question as to whether it was copied. There's no need to examine the actual computers on which the files were kept, obviously.
Crowdstrike disagrees with you. They claim they can tell when data is copied through a hack.
Henry: "There are times when we can see data exfiltrated, and we can say conclusively. But in this case it appears it was set up to be exfiltrated, but we just don’t have the evidence that says it actually left."
The only question is by whom?
Most likely a leak from inside the campaign and/or DNC, since the former was essentially running the latter at this time. Wikileaks has always denied Russia was the source and they are the only ones without a political dog in this fight.
And on that the intelligence community has spoken with rare unanimity.
Based on the Crowdstrike report and likely under political pressure to do so.
Bart, sure, if there's a trail that can be followed. But any competent hacker, such as the suspect in this case can easily defeat that by passing the data through cut-outs. You are (as usual) selectively pulling out tiny bits that you somehow think prove something which you were already convinced of.
Sadly, your ignorance of how computers operate is obviously profound, and leaves your argument floundering in pointless trivia, since you do not understand what is significant and what is meaningless.
This is a primo example of why Bircher Bart is such an unserious person. He's pushed this conspiracy theory *for years* and people have pointed out things like this to him (https://arstechnica.com/information-technology/2016/06/guccifer-leak-of-dnc-trump-research-has-a-russians-fingerprints-on-it/) and yet he still spins it. He's either suffering from dementia or a pathetic, pure propagandist.
You can't win this argument by attacking the messenger.
The Crowdstrike report is your only evidence.
If they are telling the truth under oath, there is no evidence to support their report claiming the Russians copied the Clinton/DNC emails and docs.
If they are are lying under oath about being able to identify hacker copying, their report is non-credible.
Schiff released the SCIF transcripts to get ahead of the Trump White House.
Can you charge a member of Congress with lying pathologically to Congress?
Bart, since we have only your statement here about what was said, and given your past history of comments here assuring us of all kinds of things that turn out to have been absolutely fatuous, in this case "attacking the messenger" -- in the sense of pointing out that you have been egregiously wrong in your interpretation of events -- is the only appropriate thing to do.
As for me, I'll wait for the full story to come out, rather than relying on your cherry-picked little factoids...
And, since this has precious little to do with anything worthwhile ...
You can read the Shawn Henry interview transcript here.
There was a great deal of discussion concerning Henry's admission Crowdstrike believed exfiltration of data had been prepared, but there was no evidence of execution.
What I found interesting was the suspected Russian infiltration appeared to be rather limited and possibly narrower than the documents provided to Wikileaks. Someone ought to collate the two.
And what I find interesting is the way you selectively pick what parts of Crowdstrike's expert testimony to believe, and ignore the rest, including their conclusions based on their knowledge of things you do not have a clue about.
The fact a foreign nation infiltrated the computers of a US political campaign is unremarkable. As discussed in this testimony, it has happened before. What is uniques is this being used as a pretext to spy on the opposing campaign.
Here one may reach the:
" GOVERNMENT’S MOTION TO DISMISS THE CRIMINAL INFORMATION AGAINST THE DEFENDANT MICHAEL T. FLYNN "
In the district court of Columbia, here:
Apparently, there was a reason the Mueller report used the term “apparently” when referring to the alleged Russian hack and exfiltration of Dem docs. TheY likely knew the evidence was far sketchier than what the Dems and their media were feeding the public in their lawfare attack on Trump.
"The fact a foreign nation infiltrated the computers of a US political campaign is unremarkable. As discussed in this testimony, it has happened before. What is uniques is this being used as a pretext to spy on the opposing campaign."
The predictable goal post change. This is not a serious person.
Let's remember that over a dozen independent government agencies supported the view about the Russian hacking, there was far more support for it than, say, the view that Iraq had the WMDs that the Bushies sold the second Iraq Debacle to the world on. And in the latter situation Bircher Bart pulled his skirt, hiked up his socks, grabbed his pom poms and not only led the cheerleading on that now laughing stock claim, he still maintains it even though Powell, Rice, and W himself have had to admit how wrong they were. This is not a serious man, this is a partisan incoherent propagandist.
Mr. W: Let's remember that over a dozen independent government agencies supported the view about the Russian hacking...
None of these agencies were "independent" of the Obama White House. There are all led by Obama political appointees.
Next, as the Obama spy operation demonstrated again and again, "career" FBI, Justice and intelligence bureaucrats can be just as partisan as political appointees.
Finally, the agency opinion was based on the opinion of the Democrats' IT contractor, which apparently was based on a misrepresentation, which went unrevealed until the the contractor was placed under oath.
...there was far more support for it than, say, the view that Iraq had the WMDs that the Bushies sold the second Iraq Debacle to the world on.
Apparently, your own deferral to "career professionals" is utterly partisan.
"None of these agencies were "independent" of the Obama White House"
The agencies were independent of each other. Unlike the Iraq Debacle where there was great evidence of a coordinated effort to cherry-pick and manufacture intelligence to fit a pre-ordained view, there is no such case here.
"There [sic] are all led by Obama political appointees."
Career people, some who had served and been appointed by GOP administrations as well.
"as the Obama spy operation demonstrated again and again, "career" FBI, Justice and intelligence bureaucrats can be just as partisan as political appointees."
While it's true that there's evidence of lifelong GOP operatives like Comey being partisan (for example breaking FBI policy to damage Clinton's campaign while hiding the then occurring investigation into the Trump campaign's ties to Russia), these broke *for* the GOP. Here Bircher Bart is in his 'every accusation is a confession' mode.
"the agency opinion was based on the opinion of the Democrats' IT contractor"
This has been addressed over the years here so many times that one can only note that Bircher Bart is *at best* acting as a bad faith propagandist here. The conclusion of over a dozen independent agencies, supported by independent researchers and other nation's intelligence agencies on this matter has never rested on the single piece of evidence of Crowdstrike's conclusion or word. It was built on, among other things, the similarity to other recent hacking/election interference campaigns, information left in the 'background' of 'Guccifer's' leaks, and other things. This has been pointed out numerous times here and yet Bircher Bart still years later keeps doing the equivalent of a monkey taught to use a hammer trying to fix a computer by hitting it with the hammer. At this point we're dealing a deranged or dishonest or both person.
This is, of course, a person with a long, established record of reaching laughingly indefensible and incorrect conclusions based on partisan conspiracy 'thinking.' This is the person who still insists W, Powell, Rice, etc. were correct about Iraq WMDs even after they've all confessed to have being tragically wrong on the matter (even though they have very incentive to try to deny this). This is the person who argued that the US attorney who, come to find out, is a Trump appointee, donor and campaign volunteer, was bringing politically motivated prosecutions against Trump associates Parnas and Cohen in order to harm Trump (and remember he did this *in the middle of* a conversation where he was defending the politically motivated prosecutions of the Trump administration re: the Bidens!). This is a person who said they would support Trump even if they knew he murdered someone and who, *after* the White House released their 'quasi-transcript' of Trump demonstrably asking Ukraine's head to investigate the Bidens insisted there was 'zero evidence' that Trump ever asked that. All of these near-lunatic level surmises peddled as confident conclusions are in the archives here.
This is not a serious person.
BD: "None of these agencies were "independent" of the Obama White House"
Mr. W: The agencies were independent of each other...
If none are independent of the White House, none are independent of each other.
Career people, some who had served and been appointed by GOP administrations as well.
Like Comey, Clapper, etc.
The conclusion of over a dozen independent agencies, supported by independent researchers and other nation's intelligence agencies on this matter has never rested on the single piece of evidence of Crowdstrike's conclusion or word. It was built on, among other things, the similarity to other recent hacking/election interference campaigns, information left in the 'background' of 'Guccifer's' leaks, and other things.
Strawman. We are not discussing the opinion Russia infiltrated the Clinton/DNC computers.
Pray tell, what would be the additional "evidence" Russia exfiltrated Clinton/DNC emails and docs and provided them to Wikileaks?
"Holmes" here being Oliver Wendell Holmes Jr.
I just read "The Seven-Per-cent Solution" and Sherlock Holmes also might have something to say about all of this. And, Sigmund Freud.
It is, of course, highly unlikely that the alleged "abuses" set out in the Declaration of Independence actually violated British law.
Sandy Levinson, royalist! But, as a general matter, this is likely true. The DOI clashes against the principle of parliamentary supremacy to speak of a "higher law." This continues to be a concern in modern times, including regarding human rights law.
One point to flag here is that there is a general principle that certain things might be legal but should not be assumed to be unless clearly stated. This also applies to executive action -- something might not be clearly illegal but it would not be wrong to treat those who do it as wrongdoers. Grounds for firing and impeachment comes to mind here.
And, firing and other political controls were apparent in the Bridgegate case. As we are ready to hear telephonically the arguments on the Trump financial cases next week, we should keep that in mind. There are multiple ways to address wrongdoing. The lack of doing so is abusive.
"We are not discussing the opinion Russia infiltrated the Clinton/DNC computers.
Pray tell, what would be the additional "evidence" Russia exfiltrated Clinton/DNC emails and docs and provided them to Wikileaks?"
Lol. At some point the monkey is, I guess, not even really aware they're still swinging their hammer at the computer. I mean, if it's all they know it's not a choice made. It's just what the monkey does.
"Pray tell."Post a Comment
Mr. W. is here honoring the National Day of Prayer.