about that witch hunt

There’s something really interesting about the raid on the office of Michael Cohen, Comrade Trump’s attorney — something that’s not getting the attention it deserves. Most of the attention is focused on the raid itself.

I suppose I should spend a moment on the very obvious things about the raid that are interesting. Like the fact that it’s not a raid. It’s raids. Multiple. The FBI raided his office, his home, and a hotel room.

Then there’s this: it’s really uncommon for the State to seize client material from an attorney. The attorney-client privilege is pretty sacrosanct; it doesn’t get cast aside easily. But there are a few exceptions to that privilege, one of which is that discussions between an attorney and a client involve committing or covering up a crime are NOT privileged. They’re not protected.

So for the FBI to conduct those raids, they first had to convince a prosecutor that they knew with a high degree of certainty that 1) the material they were seeking was evidence of a probable crime or cover-up being discussed by Cohen and Comrade Trump, and that 2) they’d find the material in the locations they were searching.

Attorney Michael Cohen

But here’s what’s getting overlooked: the name of the prosecutor who got a judge to issue that search warrant. Geoffrey Berman.

Who the hell is Geoffrey Berman? At present, he’s the interim United States Attorney for the Southern District of New York. Why ‘interim’? That’s an interesting story. The office had been held by Preet Bharara, who the NY Times described as “the nation’s most aggressive and outspoken prosecutor of public corruption and Wall Street crime.” When Trump was elected, all 46 U.S. Attorneys were asked to submit letters of resignation. Trump, however, apparently met personally with Bharara and asked him to stay on.

This was a potential problem for Comrade Trump since his financial empire is based in New York City, which is part of the Southern District of New York. That meant any financial investigation into Trump would be conducted by Bharara. Marc Kasowitz, another of Trump’s personal attorneys, publicly stated he warned Trump that Bharara would ‘get him’ on corruption issues. Trump then attempted to call Bharara, who refused to accept his phone call, saying it would be inappropriate for him to discuss legal matters involving the president with the president. He was fired 22 hours later.

Comrade Trump then met with a number of attorneys to decide who would be the next United States Attorney for the Southern District of New York. It’s wildly inappropriate for the president — or any government official — to interview attorneys who might be responsible for investigating his business dealings. But wildly inappropriate is Trump’s calling card. And who did Trump select for that office? A Republican who’d been a partner in the law firm Rudy Giuiliani worked for. A Republican who’d contributed US$5400 to Trump’s presidential campaign.

Geoffrey Berman, interim United States Attorney for the Southern District of New York.

That’s right: Geoffrey Berman.

Think about that for a moment. It means 1) a U.S. Attorney who was essentially hand-picked by Comrade Trump was 2) presented with evidence convincing enough for him to believe there was sufficient probable cause that 3) Trump and his attorney had engaged in communications involving either a criminal act or covering up a criminal act that he felt 4) compelled to ask for and convince a judge to 5) issue a warrant to search three locations where evidence of that crime or cover-up would be found.

That is astonishing. And I mean astonishing in the earliest sense of the term (okay, for word geeks: astonish, from the Latin ex, meaning ‘out’ plus tonare, meaning ‘thunder’; in other words, thunderstruck — staggered and dazed by the auditory shock wave created by lightning).

Comrade Trump keeps calling this a “total witch hunt.” If so, that would mean Michael Cohen is a witch’s familiar and Trump is a fucking witch. But c’mon, it’s not a witch hunt. Witches deserve more respect than that. After all, the Wiccan Rede says ‘An it harm none, do what ye will.’ That certainly excludes Trump. No decent coven would accept him as a member. Even if he was a witch. Which he’s not.

UPDATE: It appears I got ahead of myself…and ahead of the facts. It appears Berman DID NOT initiate the search warrants for Cohens office and elsewhere. Although the search was executed by the Southern District of New York, it’s being reported that Berman was recused from the process. It’s not clear at the moment whether he recused himself or was recused by his superiors. In any event, the warrant application came from Deputy Attorney General Rod Rosenstein.

The problem with these fast-moving events is that…well, they’re fast-moving.

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in the car

Okay, I’m a criminal defense guy at heart. Whenever I look at or think about a criminal case, my first instincts are to see it from a civil liberty/defense oriented perspective. So when I see Gen. Michael Flynn pleading guilty to a single count of making a false statement to the FBI, my immediate thought is this: This guy is in the car.

That’s an old, out-of-date term. In the car. It means to cooperate with the authorities. “Will this guy get in the car?” “Can we keep him in the car?” “Motherfucker is thinking about getting out of the car.” Like that. If somebody is in the car, he’s along for the ride.

Michael Flynn is in the car. He’s cooperating with Special Counsel Mueller and his team. The fact that he’s pleading to a single felony count also suggests (and when I say ‘suggests’ I mean ‘is pretty much definitive proof’) Mueller has a saddlebag full of other felonies with which he can charge Flynn. My guess is Mueller is also holding on to a few felonies for Flynn’s nitwit son, who is also criminally exposed (as we say in the biz).

Michael Flynn, former U.S. Army Lt. General, former director of the Defense Intelligence Agency, former National Security Director, felon.

So this is a good deal for Flynn, even if he ends up doing a chunk of time in some semi-pleasant federal prison. It’s a good deal for Flynn the Lesser, who may avoid criminal culpability altogether. It’s a good deal for Mueller and his team, because you can be sure Flynn is handing them incriminating information on folks higher up in the federal food chain. Maybe Jeff Sessions, maybe Pence, maybe Comrade Trump his ownself.

It’s bad news for those folks. This is the part of the movie in which we begin to hear the ominous musical theme. Sessions and Pence will probably go all tight-lipped and grim. Trump will…well, who know what the hell he’ll do? Explode, maybe. On weekends Comrade Trump likes to escape his handlers — which means he 1) can go golfing and 2) can rage-tweet. Unless, of course, his handlers wrestle his phone out of his hands. My guess is we’ll either hear nothing at all from Trump over the weekend or he’ll start flinging poo in all directions.

As a criminal defense guy, I have to admit I hate it when I hear somebody’s in the car. I do not like a snitch. As a patriotic private citizen, however, I’m glad to know Mueller has Flynn’s balls in a vise grip and is applying pressure. Mueller is a defense guy’s worst nightmare; he’s honest, he’s methodical, and he’s fucking relentless. Mueller is a patriotic private citizen’s dream for those same reasons.

I’m sad to say, though, that little attention will be given today to one of the real heroes of this story: Sally Yates. She was the acting Attorney General who informed the White House Counsel that Flynn was lying about his calls with the Russian ambassador, which made him vulnerable to blackmail by Russia. A few days later, Yates was fired (ostensibly for refusing to defend Comrade Trump’s illegal immigration order).

Tonight I’ll have a beer, and I’ll raise my glass to Sally Yates for first exposing Flynn, to Robert Mueller for his professional prosecution, to Michael Flynn’s legal team for making the best deal possible for their client, and what the hell, I’ll raise my glass to Flynn himself. He’s a rotten sumbitch who’s turning on other rotten sumbitches, but he’s the latest sumbitch in the car. And that car is moving right along.

I can drink to that.

dude is serious

Right, we’ve had a couple of days to give a measure of semi-sober thought to what happened on Monday. It seemed like a pretty big deal, didn’t it. I mean, we’re talking indictments, plea agreements, defendants turning themselves in to the FBI, millions of dollars in bail. On the surface, that’s some pretty dramatic shit.

That semi-sober thought business has clarified a few things. I think it’s safe to say on reflection that it’s an even bigger deal than we originally thought. It’s even safer to say this about Special Counsel Robert Mueller: dude is serious.

First, there’s this fact: Comrade Trump’s presidential campaign included three men (Manafort, Gates, and Papadopolous) who were actively working as unregistered agents of a hostile foreign government in an attempt to influence the presidential election. Three men. Actively working. As unregistered foreign agents. Of a hostile government. And one of those men was Trump’s campaign manager. If you wrote that in a novel or screenplay, you’d be accused of stretching the reader’s willing suspension of disbelief to the breaking point.

Second, there’s the George Papadopolous guilty plea. In a lot of ways, that’s an even bigger deal than the indictments. It not only serves as a reminder that Robert Mueller doesn’t fuck around, it also informs us that he and his team are professionals. While everybody was waiting for the first indictments to be announced, Mueller had already arrested this guy, convinced a judge to break the attorney-client privilege, flipped him, and got him to plead guilty. That was fast. Dude IS serious.

That also tells us that while Comrade Trump’s White House is packed full of folks willing or eager to leak stories, Mueller’s team knows how to keep a secret. Anybody who is/was associated with the Trump campaign, the Trump transition team, or the current Trump administration, has to be worried — if not for their freedom, then at least for their future career. Because more indictments are coming. More guilty pleas are probably coming. And ain’t nobody can tell where the hammer will fall next.

Robert Mueller ain’t having any of that.

That sends a further message: anybody who hopes to make a deal with Mueller had better make that deal quickly. Or somebody else will make that deal. And you know there are Trumpistas who’ll sell out anybody to save themselves. Mueller knows that too, and that dude is SERIOUS.

Also, make note that the guilty plea and the indictments all include charges about lying to the government as a mode of obstructing the pursuit of justice. Mueller ain’t having no obstruction of justice. No, sir.

Mueller is like the shark in Jaws. He’s coming. He’s not going to stop. You try to distract him with a huge pot roast on a hook, he’ll take the roast, take the hook, and take the pier you’re standing on too. Dude is serious.

bullshit with icing

I have a friend — an artist (by which I mean an actual, no-shit, serious artist who not only makes art, but thinks about art and the nature of art and what is meant when we use the term ‘art’) — who recently said he wasn’t sure how he felt about the whole Masterpiece Cakeshop situation. To which I have two responses.

First, what the fuck does that even mean? How can you not know how you feel about something? I can totally understand having mixed feelings. I can understand having contradictory feelings. But surely it’s pretty obvious how you feel about any given thing at any given moment because you’re actually in the process of feeling it.

Second, stop over-thinking the Masterpiece Cakeshop situation. Which probably leads a lot of folks to this question: what the hell is the Masterpiece Cakeshop situation? It’s your basic situation in which a Christian doesn’t want to bake a wedding cake for a same-sex couple. There’s a good chance you already think this crap has already been settled, and you’d be mostly right. The law is pretty clear. If you’re providing goods or a service to the public for commercial reasons, then you have to provide those goods and that service to ALL the public. Even if you don’t like or approve of them.

If you run a rental agency, you can’t refuse to rent a folding table to a Muslim just because you hate Muslims. If you run a landscaping business, you can’t refuse to landscape the lawn of a Thai family just because you dislike Asians. And if you bake cakes for a living, you can’t refuse to bake a cake for a same-sex couple just because you think homosexuality is evil.

A baker can refuse to bake a cake if the customer is requesting a personally objectionable decoration. You can refuse to bake cake in the shape of a penis. You can refuse to decorate a cake with I ♣ My Wife. You can probably refuse to bake and decorate a cake if the customer behaves like an asshole. But you can’t refuse to bake a cake simply because you object to the customer’s race, gender, marital status, religion, and all that.

Jack Phillips, cake artist

But here’s why the Masterpiece Cakes situation is a situation — and why my artist friend and his feelings are so confused. A baker named Jack Phillips, who owns a bakery called Masterpiece Cakeshop, refused, for religious reasons, to bake a custom wedding cake for a same-sex couple. He also refuses for religious reasons to make cakes that celebrate Halloween or a divorce, and he won’t bake a cake that includes alcohol. What makes this situation a situation, though, is that Phillips is NOT claiming he won’t bake a wedding cake for a same-sex couple because they’re gay, but because they’re getting married. His religion states marriage should only be between a man and a woman. He says,

“I’m being forced to use my creativity, my talents and my art for an event — a significant religious event — that violates my religious faith.”

In other words, Phillips sees his custom cakes as works of art, and he shouldn’t be required to make art that offends his personal sensibilities (in this case, it’s his religious sensibilities). His lawyers argue that forcing him to create a custom cake for a same-sex wedding threatens the “expressive freedom of all who create art or other speech for a living.” And let’s face it, the law wouldn’t force a Jewish painter to accept a commission to paint a portrait of Hitler. The law wouldn’t force a Mormon sculptor to accept a commission to sculpt a giant stone dildo with the face of LDS founder Joseph Smith. So why should the law force Christian Jack Phillips to accept a commission to create a cake celebrating a marital union his religion opposes?

It’s because of this free expression argument that the Masterpiece Cakeshop situation is a situation. This is why four of the justices of the U.S. Supreme Court have agreed to hear arguments on the case at some point in this term. And hey, if we agree that art is protected by the free expression clause of the First Amendment (and it is), and if we agree that decorating a cake can be a work of art (and sure, it can be), then that sounds like a solid argument in favor of Phillips.

But it’s not. It’s just bullshit with vanilla icing.

Happy birthday!

It’s bullshit for this reason: it’s still about the wedding. it’s about the purpose of the cake, not the decoration. Let’s say the gentlemen who wanted the cake asked Phillips to create a three-tier wedding cake decorated with rainbow hearts and with two tuxedoed male figures arranged side by side on top. Phillips refuses, saying he shouldn’t be required to use his talents to create a custom wedding cake because his religious views oppose same-sex marriage. Now let’s say those same gentlemen asked Phillips to create a three-tier birthday cake decorated with rainbow hearts and with two tuxedoed male figures arranged side by side on top. Unless his religious views forbid him from celebrating birthdays, he’d be required to make the cake.

It’s the same damned cake using the same ingredients with the same decorations created using the same artistic skills. The only difference is the purpose, and the purpose in the Masterpiece Cakeshop situation is to discriminate against folks having a same-sex marriage.

It’s not about art and it’s not about free expression; it’s about refusing to obey laws against discrimination.

pissing on the constitution

How’d that happen? How the hell did that happen? How could those flannel-wearing meshback motherfuckers be acquitted of crimes they so obviously committed?

Simple. It’s called jury nullification. Basically, that means a jury decides to acquit the defendants even though they’re factually guilty of violating the law because the jurors believe the law itself is wrong or that it’s been wrongly applied.

It’s infuriating sometimes — and this time in particular — but in the long run, jury nullification is mostly a good thing. The most famous case on American soil was that of Peter Zenger, a journalist for the New York Weekly Journal back in 1734. That’s right, 1734, when this country was still a British colony. Zenger published some snarky shit about the Royal Governor of colonial New York, for which the governor had him arrested and charged with seditious libel. This was a pretty heavy crime back then. Seditious libel is when somebody prints snarky shit about the Queen or her officials.

Remember, Zenger had very clearly published snarky shit about a royal governor. He’d committed the crime. That boy was dead guilty. But the jury acquitted him after about (and I’m not making this up) ten minutes of deliberation. This was the case that set the precedent on which the First Amendment rests — which is that publishing snarky shit isn’t a crime if the snarky shit is true.

Jury nullification in defense of free speech

Jury nullification in defense of free speech

Before the U.S. Civil War, jury nullification was used to acquit defendants charged with harboring slaves in violation of the Fugitive Slave Laws. People were clearly guilty of hiding fugitive slaves, but juries found them not guilty anyway. The same thing happened during Prohibition in the 1930s — juries acquitted defendants who were obviously guilty of breaking both Federal and State alcohol control laws.We also see jury nullification used in some ‘mercy killing’ cases. And, of course, we’ve seen the practice at its worst in cases where all-white juries in the South acquitted white defendants of lynching black men.

So what happened in Oregon yesterday is part of an American tradition. It still makes me completely fucking furious to see these yahoos skate, of course. I’m fairly certain this verdict will encourage more of this sort of shit. It especially saddens and disgusts me that a group of armed fuckwits who seized a government facility will mostly walk while Native Americans peacefully attempting to prevent the physical (and, to them, the spiritual) desecration of their land by a goddamn oil company are being arrested. And we know with mathematical certainly what would have happened if folks associated with Black Lives Matter had pulled the same idiotic shit that the Bundyistas pulled.

Jury nullification in defense of armed seizure of federal property

Jury nullification in defense of armed seizure of federal property

But there it is. The Bundy lawyers were able to convince a sympathetic jury that their clients should be acquitted even though they were factually guilty. It’s true, the Bundys are still in jail and will be tried for other crimes committed in another state — but that doesn’t change the fact that yesterday they successfully pissed all over the Constitution.

The only good news to be found in this is that the Constitution is strong enough that it permits people to occasionally piss all over it.

defending the wrong people

I have a Twitter account that I completely neglect. I have friends, though, who sporadically alert me to Interesting Stuff That Happens On Twitter. It didn’t take long for them to inform me that the Republican National Committee tweeted this:

Exclusive: Republicans Launch Willie Horton-Style Attack on Kaine

Kaine, of course, is Democratic Vice Presidential candidate Tim Kaine. But there are probably a lot of folks who aren’t familiar with the name Willie Horton. He was featured in a racist campaign advertisement used by George H.W. Bush against Democrat Michael Dukakis in the 1988 election. Here’s the original ad:

This is unquestionably one of the most notorious political attack ads in US election history It was the brainchild of Bush campaign manager, Lee Atwater, one of the most vile and venomous political ratfuckers of modern political history. That’s not an exaggeration. You want proof? Here’s something Atwater said in a 1981 interview:

“You start out in 1954 by saying, ‘Nigger, nigger, nigger.’ By 1968 you can’t say ‘nigger’ — that hurts you. Backfires. So you say stuff like forced busing, states’ rights and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is blacks get hurt worse than whites. And subconsciously maybe that is part of it. I’m not saying that. But I’m saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me — because obviously sitting around saying, ‘We want to cut this,’ is much more abstract than even the busing thing, and a hell of a lot more abstract than ‘Nigger, nigger.'”

Atwater was a sort of evil genius. He gave a lot of serious, creative thought about ways to encode racism into political speech. He was an early adopter of ‘dog whistle’ campaigning, devising methods for emphasizing race that non-racists might not even hear. For example, Atwater shortened Horton’s given name, William — the name he went by — to Willie. Why? Because he thought Willie sounded more black. Atwater said this about the Horton ad:

“By the time we’re finished, they’re going to wonder whether Willie Horton is Dukakis’ running mate.”

And hey, it worked. Bush won the election. At the end of his life, however, when he knew he was dying, Atwater apologized to Dukakis for the “naked cruelty” of the campaign he ran. A lot of people doubt the sincerity of that apology.

Lee Atwater, with Strom Thurmond and Ronald Reagan.

Lee Atwater, with Strom Thurmond and Ronald Reagan.

Atwater died in 1991. This is 2016, and in 2016 the Republican National Committee is seemingly proud to return to the naked cruelty of Atwater and the Willie Horton style of campaigning. The RNC quickly deleted their tweet about running a Willie Horton ad. The ad is still out there, of course. And the message is still the same: associate your opponent with the ‘wrong people’ — but do it in a coded way that doesn’t appear hateful.

Here’s the anti-Kaine advert:

The ad concludes by stating: “Tim Kaine, he has a passion for defending the wrong people. America deserves better.”

I spent seven years as a criminal defense investigator, working to defend the ‘wrong’ people. I helped defend murderers, rapists, arsonists, armed robbers, gun traffickers, and child molesters. I helped defend them knowing that almost all of them were guilty. They weren’t always guilty of the crime they were charged with, but most of them were guilty of something — sometimes guilty of something not as bad, sometimes guilty of something even worse.

Some of you — maybe most of you — are asking the obvious question: how could you defend somebody you knew was guilty of a heinous crime? It’s a valid question. There’s an answer that I believe is valid, though not everybody agrees — and even those folks who agree with the answer in the abstract find it uncomfortable to accept in practice. I often found it uncomfortable too. Here’s the answer:

Sometimes the police make mistakes.

That’s it, basically. Sometimes the police arrest an innocent person. I like to believe that most often the police are truly certain they’ve arrested the right person — but sometimes they’re just flat-out wrong. And in order to protect the folks who are truly, factually innocent of the crime they’re charged with, it’s necessary to force the police and the prosecutor to prove their case beyond a reasonable doubt every single time. Every single time. Even if the defendant is clearly, blatantly, obviously guilty, we have to hold the prosecution to a high standard of proof. Because if we don’t — if we fail to protect the legal rights of every person every single time — then it becomes easier for them to convict those who are truly innocent.

Tim Kaine defended accused murderers — defended guilty murderers. Nobody does that because they support murder. They do it because the believe in — and are willing to do ugly work to defend — the legitimacy of the Constitution of the United States. That may not be popular, but it’s patriotic.

When the Republican National Committee attacks Tim Kaine for defending accused criminals, they’re actually undermining the U.S. Constitution. They’re basically suggesting there are citizens who are the ‘wrong people’ and as such, they don’t deserve the same rights as ‘decent’ people.

Of course, they’ve been suggesting that for a long time. They suggest the wrong people shouldn’t be allowed to marry, they shouldn’t be allowed to adopt, they shouldn’t be allowed to serve in the military or receive food assistance if they’re poor or be guaranteed safe working conditions or receive financial assistance if they’ve lost their job or become citizens of the United States.

They’ve become very good at suggesting stuff about gays and Muslims and women and poor folks and people of color. Because 2016 and you can’t say ‘nigger nigger nigger’ out loud anymore.

time to close the militia fantasy camp

Okay, I’m pretty much sick of those swag-bellied motherfuckers who are still parking their pale, pasty, spongy asses on public land in Oregon. And I’m pretty much weary of waiting for Federal law enforcement to do their fucking job.

I’m a peaceful guy. A patient guy. I have been told patience is my only redeeming quality. But Jeebus in a tea-cup, people, there’s a point at which patience ceases to be a virtue. And we passed that point a week ago. At this point, we’re only encouraging them. We’re only inviting more of this shit.

They call it a peaceful event. That’s a lie. Here’s how you can tell it’s a lie: you don’t bring guns to a peaceful protest. You bring guns to a gunfight. They keep saying that IF there’s violence, it’ll be initiated by LEOs — and they say it in the same way a wife-beater tells his battered wife “Don’t make me do this.”

Not a peaceful protest.

Not a peaceful protest.

What that basically says is these tunaheads don’t believe they should be held accountable for their behavior. Tell me, does that work for any group other than armed white guys wearing cowboy hats? Never mind, I know the answer. The answer is hell, no.

They say they want a peaceful resolution. That’s also a lie. Here’s what Ammon Bundy, the bull goose loony of the occupation, told an FBI negotiator yesterday:

“I want to make sure that you understand: The resolution is the Constitution of the United States. How we get there, I realize there’s some steps and some things we need to do. But we’ve compromised that supreme law long enough.”

What they mean by ‘resolution’ is capitulation to their fuckwitted interpretation of the U.S. Constitution. That leaves absolutely no room at all for real negotiation. And let’s face it, at this point the only thing that should be negotiated is how these toads should surrender themselves to law enforcement.

Not looking for a peaceful resolution.

Not looking for a peaceful resolution.

Again, I’m a peaceful guy. I don’t want to see anybody get hurt, including these guys. I don’t want to see this situation end in a gunfight. Gunfights are bad news for everybody. But I want to see these jamokes held accountable. Right now, they’re basically allowed to come and go as they please, attending town meetings, stocking up on snacks. Just as bad, their supporters are allowed into the wildlife refuge to resupply them. These guys are acting like they’re at Militia Fantasy Camp. Seriously, what the fuck, FBI?

There are some basic steps the Feds could take to apply pressure. Isolate the bastards. Turn off their goddamn electricity. Jam their cell phones. Stop their supply runs. Arrest anybody who tries to enter the wildlife refuge, and arrest any of the occupiers who leave. Treat these fuckwits like the criminals they are.

Don’t just stand around with your thumb up your ass; do something.