mueller — itmfa

I watched Robert Mueller’s brief public statement yesterday. And dude, the operative term there is ‘brief’. Under ten minutes. He slid over behind the DOJ podium, said his piece, then was gone like Kyzer Soze.

I know a lot of folks were disappointed by his statement. I guess they were hoping for something dramatic — some sort of revelation maybe, or a political call to arms. But that’s not Mueller. Mueller’s a professional prosecutor. Here’s the thing: political processes always involve some level of passion and partisanship. But we’re supposed to keep that shit out of legal processes. Legal processes are supposed to be sober, deliberate, and dispassionate.

This is where the problem lies. Because Mueller’s legal process has big-ass political implications. In his statement yesterday, he said his report:

“…contains our findings and analysis, and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself.”

But the work doesn’t really speak for itself on account of 1) it’s a prosecutor’s document and even though there’s juicy stuff in it, the report is written in a legal fashion that’s boring as fuck to read, and 2) the report is almost as long as a Game of Thrones novel, and as a result of 1) and 2), we get 3) ain’t hardly nobody actually reading it.

And that’s a damned shame, because the report is pretty fucking clear. It says Russian military intelligence agents interfered with the 2016 election to help Comrade Trump and hurt Hillary Clinton. It says the Trump campaign was hip deep in Russian contacts, all of which had some sort of connection to Russian intelligence agencies. It says folks in the Trump campaign lied their asses off about those contacts. And it says Trump and his people obstructed the investigation in lots of ways, but since he’s the president (and the DOJ has a policy that a sitting president can’t be indicted) they couldn’t consider charging him with a crime.

In his statement yesterday, Mueller reminded everybody — including Congress — that there are options to charging Trump with a crime. He said,

“[T]he Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.”

That’s about as close as Mueller can get to saying, “Congress, y’all need to impeach the motherfucker already.” And let’s face it, when he’s saying ‘Congress’ he basically means ‘Democrats’ because nobody, including Mueller, expects the Republicans in Congress to hold Trump responsible for anything.

I think that’s at least partially why Mueller made a public statement. He’s a Republican his ownself, and I sorta kinda think he’s trying to shame Republicans into stepping up and earning their paychecks. I think Mueller is telling everybody that serious shit took place, and as a nation we can’t allow that to happen. That’s actually the very last thing he said in his statement:

“I will close by reiterating the central allegation of our indictments—that there were multiple, systematic efforts to interfere in our election. That allegation deserves the attention of every American.”

Every American. Including Republican-Americans. If gutless Democrats refuse to start impeachment hearings, they’re freeing gutless Republicans from having to take any responsibility for Trump’s behavior. Impeachment proceedings will force Republicans to state publicly if they’re willing to allow the ratfucking of US elections by hostile foreign nations if it helps them win elections.

Mueller isn’t going to show up at demonstrations wearing a ITMFA tee shirt or appear with Colbert drinking from a ITMFA mug. He’s not going to write an op-ed in the New York Times or Washington Post advocating impeachment. That was never his job and he’s not that sort of guy. He’s written his report and he’s made a statement. He’s said what he can say and done what he can do.

It’s up to us and to Congress now.

 

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that kind of thing happens

In April of 2008, Lt. Michael Behenna — an Army Ranger and platoon leader in the 101st Airborne Division — was part of a convoy traveling north of Baghdad. A roadside IED detonated, killing two of Behenna’s platoon members and badly wounding several others. In war, that kind of thing happens. Bombs explode, people get killed and maimed.

An intelligence report linked a man named Ali Mansur to the attack. Mansur, like a lot of unhappy, resentful Iraqis, was suspected to be a member of al-Qaeda. He may have been al-Qaeda. He probably was, given that he was in Iraq with a Syrian passport. In any event, Mansur was detained and for two weeks he was interrogated by intelligence officers. They were unable to confirm a link between Mansur and the IED, so they ordered him released. That kind of thing happens in modern war; you can’t always distinguish the enemy from the disgruntled, or the disgruntled from the innocent. Innocent people get caught up and punished unfairly; guilty people walk.

Lt. Behenna was ordered to return Mansur to his village. Instead, Behenna and his platoon took the handcuffed prisoner to a secluded location near a railroad bridge. They used their knives to cut off his clothing. Without any authorization, they continued to interrogate him about the IED. Eventually they removed Mansur’s restraints, and at some point Lt. Behenna shot him twice, killing him. In war, that kind of thing happens. Troops under a massive amount of stress sometimes act irrationally and against orders. Sometimes in war, it’s not really clear what counts as rationality. If you send young men and women to war, some of them will commit war crimes.

The next day villagers found Mansur’s naked body, burned, stashed in a culvert below the railroad bridge. In July, Behenna was relieved of his command and charged with murder. Two of his platoon members and his interpreter testified against him at his court martial. The interpreter testified that Behenna told Mansur he was going to kill him, but had assumed it was just a threat to frighten Mansur. Behenna claimed he was acting in self defense when he shot Mansur. He testified Mansur had made an attempt to seize his weapon. Which is entirely possible. If I’d been questioned by military intelligence for two weeks, then told I was to be released but was instead taken to a remote area by the troops who had accused me in the first place, had my clothing cut off me, and was threatened with death while being interrogated again — if they removed my restraints, I might try to grab that guy’s weapon too. That kind of thing happens when you’re desperate and have nothing to lose.

In 2009, Behenna was found guilty of unpremeditated murder in a combat zone and sentenced to 25 years imprisonment. After a number of appeals and requests for clemency, his sentence was reduced to 15 years. Behenna was released on parole in 2014, having served less than five years. That kind of thing happens in the justice system, both civilian and military. There’s always a tentative and uneasy balance between justice and punishment.

Lt. Behenna and the men of “Mad Dog 5” — 5th Platoon, Delta Company, 1st Battalion, 327th Infantry Regiment of the 101st Airborne Division.

Yesterday, President Comrade Trump gave Behenna a full pardon. Trump has issued eight pardons to date. His other pardons include

  • Dwight and Steven Hammond — cattle ranchers who threatened US Forest Service officials, and whose 2012 convictions for arson of federal property sparked the 41-day occupation of the Malheur National Wildlife Refuge by right wing terrorists.
  • Dinesh D’Souza — right wing pundit, conspiracy theorist, and provocateur who pled guilty to campaign fraud in 2014.
  • Lewis ‘Scooter’ Libby — Vice President Dick Cheney’s Chief of Staff who was convicted of one count of obstruction of justice, two counts of perjury, and one count of making false statements in regard to leaking the identity of an undercover CIA agent in an effort to discredit arguments that there were no weapons of mass destruction in Iraq — the pretense behind the Iraq War.
  • Kristian Saucier — a machinist’s mate in the U.S. Navy who was convicted of taking photographs of classified areas of a nuclear submarine, and who destroyed evidence after being questioned by the FBI. Saucier was given a less than honorable discharge and sentenced to a year in prison. His lawyers argued he deserved a lesser sentence because Hillary Clinton had classified information on her personal server and received no punishment. His lawyers also agreed the two cases were different, and that Saucier knew what he was doing was illegal.
  • Joe Arpaio — Sheriff of Maricopa County, Arizona and birther conspiracy theorist, who was convicted of contempt of court for refusing to comply with the court’s order to stop its racial profiling practices.

See a pattern? You can defy court orders, endanger national security, expose the identify of a NOC CIA agent, commit campaign fraud, commit arson, or murder a suspect in a war zone and burn his body; you do that and still receive a full pardon, if the president likes you. That kind of thing happens when hostile foreign nations influence a US election in order to elect an ignorant, narcissistic, malignant, compliant conspiracy theorist as President of the United States.

NOTE: I have a lot of compassion for Mr. Behenna. He and the men of Mad Dog 5 suffered horribly. In the IED explosion, one of his men was literally cut in half. Nobody can experience that kind of thing and not be affected by it. If he believed Mansur was responsible for that, I don’t blame him for wanting to execute the man. You can read a more detailed account of what happened at SCOTUSblog.

But here’s the thing: if you send people to war, they’re going to commit war crimes. It’s a given; we need to acknowledge that ugly truth. But even in the most horrific conditions we have to maintain military discipline and the rule of law. Behenna was an officer; he swore an oath; he knew what he was doing when he took Mansur to that bridge; he knew it was against orders. He did it anyway, and he tried to cover up his crime.

I have compassion for Behenna. But he’s not deserving of a pardon.

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.

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.