Whereof One Can Speak 🇺🇦

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Justice Comes Calling for You Know Who

A real estate developer, former game show host and sometime politician was in court yesterday in New York City. A grand jury having issued an indictment, the Manhattan District Attorney will now prosecute him. As with other criminal cases, the wheels of justice will grind slowly. The defendant isn’t due back in court until December, unless there’s a plea bargain first. If the matter eventually goes to trial, it won’t be until 2024 (or even later).

This case has captured many people’s attention. The defendant’s trip from his house in Florida to a New York courtroom was given the kind of coverage we haven’t seen since John Kennedy’s body was flown back to Washington or O. J. Simpson was followed by police on the San Diego Freeway.

I confess to have followed the case fairly closely myself (while avoiding cable “news”). I think Jennifer Rubin of The Washington Post, who has called herself “a recovering lawyer”, summed up the situation quite well:

The indictment centers on hush money payments to adult-film star Stormy Daniels and two others possessing information that [the defendant] did not want circulating before the 2016 election. At the heart of the allegations: A raft of check stubs, corporate records and invoices documented the payments as legal services to his former attorney Michael Cohen….

Any pundits who speculated ahead that the case was weak, misreported the “intent” requirement under New York law or ignored obvious arguments putting the charges in compliance with the statute of limitations may have been premature in denigrating the case. Once more they’d be wise to hold their fire given some strategic ambiguities apparent in the indictment.

[District Attorney] Bragg sets out the allegations: [the defendant] was part of a scheme to pay off three individuals (a doorman, Daniels and a second woman, Karen McDougal) as part of an effort to “catch and kill” allegations of extramarital affairs (which [he] has denied). The indictment alleges that [he] directed Cohen (who already pleaded guilty to federal crimes based on these same facts) to make the payments through shell companies and invoices falsely labeled “legal retainer.” A plethora of check stubs, invoices and general ledger entries form the foundation of the case.

Importantly, the indictment ties [defendant’s] actions to the election in two key ways: First, evidence of his desire to drag out payments to Daniels beyond the election so he might not have to pay up in full. Second, as soon as he was sworn in, the doorman and “Woman 1” were released from their deals. Once the election was over, [the defendant] didn’t care what they said.

And then, in Paragraph 44 of the indictment, Bragg quotes from the plea entered by Cohen in federal court:

“[O]n or about October of 2016, in coordination with, and at the direction of … the defendant], I arranged to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information…. I participated in this conduct …, for the principal purpose of influencing the election.”

[The defendant] is not being singled out or treated unfairly. The core of the indictment alleges that [he] violated New York books and records law, a crime that is regularly prosecuted, according to research compiled by former prosecutors. In this case, those violations arguably impacted an extremely close presidential election. False statements in furtherance of a scheme to pull the wool over the eyes of voters is hardly inconsequential.

The indictment suggests two options to elevate charges. Bragg alleges that records were falsified in furtherance of a scheme to contravene state and federal election laws. He also says [the defendant] took steps to mischaracterize the true nature of the payments for tax purposes. Tax law provides another sound basis for bumping the charges up to felonies.

While the indictment does not set out precisely which crimes elevate books and records violations to felonies, Bragg at his news conference pointed specifically to misstatements to tax authorities, to federal election law and to N.Y. Election Law § 17-152, which makes it illegal for “two or more persons [to] conspire to promote or prevent the election of any person to a public office by unlawful means.” With the testimony of Cohen and others, plus the documents, this may not be hard to prove.

What about what’s not in the indictment? Bragg did not cite specific statutes he will rely upon to pursue felonies. But there is nothing sneaky or underhanded about that. Bragg presented what he thought he needed to — no more and no less. Media impatience is no reason to reveal more in an indictment than he would normally do at this stage. (New York legal experts point out to me that even in the jury instructions, the prosecutor need not specify the precise crime that bumps up a charge to a felony.)

Brookings Institution’s Norman Eisen, who has written extensively on the case, tells me, “The 44-paragraph recital of the evidence is absolutely damning.” And while we may be frustrated with the lack of legal argument, he says that “there’s no legal requirement in New York for Bragg to plead with any more specificity than he has done here.”

Eisen, who served as co-counsel to the House Judiciary Committee in [the defendant’s] first impeachment hearing, adds, “There will undoubtedly be much more to come, both when [the defendant] files his inevitable bill of particulars, and as the case otherwise unfolds through the trial and pretrial process.” There is ample case law for using federal and state election law violations to bump up a records falsification case.

While the complaint goes into some detail on efforts to make sure Cohen knew he was “loved” and had friends in “high places” (the defendant runs a “pressure campaign,” as the indictment titles one section), it does not specifically charge witness tampering or obstruction. But such actions speak to consciousness of guilt, an awareness that [the defendant] needed Cohen to remain quiet because he feared their scheme would become public.

At his news conference, Bragg said, “Under New York state law, it is a felony to falsify business records with intent to defraud and intent to conceal another crime. That is exactly what this case is about. Thirty-four false statements made to cover up other crimes. These are felony crimes in New York state no matter who you are.” Bragg is certainly right that these are “bread and butter” white-collar crimes routinely prosecuted. The New York Times reports, “Since Mr. Bragg took office in 2022, prosecutors have filed 117 felony counts of the charge, against 29 individuals and companies, according to data kept by the office.”

While frustrating for the media and legal pundits, we are not likely to get more detail until pretrial motions are heard [later this year]. The judge put a protective order on the evidence, so that cannot be shared with the public. And while the judge reportedly admonished [the defendant] about threats to the prosecutor or others, he will be free to share (or not) his views and arguments — unless later subjected to a gag order…. As a criminal defendant, he cannot say everything he wants; like other defendants, if he threatens court personnel or incites violence, he’ll find himself back before the judge. (He certainly went right up to the line during remarks [in Florida], with references to the judge and his family.)

…  The judge and jury won’t care how loudly [the defendant] and his cultists whine about his plight. They certainly won’t care that the media wants to find out Bragg’s legal strategy. The matter rests with the New York court — which is what equal justice under the law demands.

It matters not one bit that the defendant is being investigated by other agencies for other crimes or that millions of Americans chose to give someone like him a victory in the Electoral College. It also doesn’t matter one bit that people who think the criminal case is weak will be given a lot of publicity (controversy sells). After all these years, this guy is finally the defendant in a criminal case. Let justice be served.

PS: The indictment isn’t worth reading. The Statement of Facts that came with the indictment is much more interesting. It describes the conspiracy to sway the election.

We Still Don’t Know What Happened in October 2016

Two of the last six presidential elections gave us Republican presidents who lost the popular vote. The institution most responsible for those results was our ridiculous, minority-rule Electoral College. But other institutions played important roles. In 2000, it was the Republican majority on the Supreme Court. In 2016, it was the Federal Bureau of Investigation, assisted by the press.

Will Bunch of The Philadelphia Inquirer shows that we still don’t know how America got screwed in October 2020:

It was arguably the most consequential “October Surprise” in the history of American presidential elections. In the waning days of the 2016 race, with polls showing Hillary Clinton clinging to a lead over D____ T____, two last-minute stories broke that rekindled on-the-fence voters’ ethical doubts about Democrat Clinton and quashed a budding scandal around her GOP rival.

Except the “October Surprise” was no surprise to one key player: Rudolph Giuliani, the ex-New York City mayor and T____ insider who later became the 45th president’s attorney. Late that month, Giuliani told Fox News that the trailing Republican nominee had “a surprise or two that you’re going to hear about in the next few days. I mean, I’m talking about some pretty big surprises.”

Just two days later, then-FBI director James Comey revealed the bureau had reopened its probe into Clinton’s emails, based on the possible discovery of new communications on a laptop belonging to disgraced New York politico Anthony Weiner. The news jolted the campaign with a particularly strong boost from the New York Times, which devoted two-thirds of its front page to the story — and the notion it was a major blow to Clinton’s prospects.


It was later reported that Comey was motivated to make the unusual announcement about the laptop because he feared leaks from the FBI’s New York field office, which, according to Reuters, had “a faction of investigators based in the office known to be hostile to Hillary Clinton.” Indeed, Giuliani bragged immediately after that he had sources in the FBI, including current agents.

The supposed bombshell — it turned out there was nothing incriminating or particularly new on the laptop — wasn’t the only FBI-related story that boosted T____ in the homestretch of the 2016 campaign. On Oct. 31, citing unnamed “intelligence sources,” the Times reported, “Investigating D____ T____, F.B.I. Sees No Clear Link to Russia.” That article defused a budding scandal about the GOP White House hopeful — at least until after T____’s shock election on Nov. 8, 2016. In the coming days and weeks, the basis of that Times article would melt, but by then the most unlikely POTUS in U.S. history was ensconced in the Oval Office.

There are many reasons for T____s victory, but experts have argued the FBI disclosures were decisive. In 2017, polling guru Nate Silver argued that the Comey probe disclosure cost Clinton as many as 3-4 percentage points and at least 1 percentage point, which would have flipped Pennsylvania, Michigan, and Wisconsin and handed her the Electoral College.

This week’s stunning corruption charges against a top FBI spymaster [whose assignment to the New York office was announced in October 2016] — an agent who by 2018 was known to be working for a Vladimir Putin-tied Russian oligarch — should cause America to rethink everything we think we know about the T____-Russia scandal and how it really happened that T____ won that election.

The government allegations against the former G-man Charles McGonigal (also accused of taking a large foreign payment while still on the FBI payroll) and the outsized American influence of the sanctioned-and-later-indicted Russian billionaire Oleg Deripaska — also tied to U.S. politicians from T____ campaign manager Paul Manafort to Senate GOP leader Mitch McConnell — should make us also look again at what was really up with the FBI in 2016.

How coordinated was the effort in that New York field office to pump up the ultimate nothingburger about Clinton’s emails while pooh-poohing the very real evidence of Russian interference on T____’s behalf, and who were the agents behind it? What was the role, if any, of McGonigal and his international web of intrigue? Was the now-tainted McGonigal a source who told the New York Times that fateful October that Russia was not trying to help Trump win the election — before the U.S. intelligence community determined the exact opposite? If not McGonigal, just who was intentionally misleading America’s most influential news org, and why?

…To be sure, the 2016 FBI leaks weren’t the first time a major news organization has been burned by anonymous law enforcement sources, and regrettably, it probably won’t be the last. Media critics have been talking for years about the Times’ flawed coverage, and how its near certainty that Clinton would win and a desire to show its aggressiveness toward a future president seemed to have skewed its coverage.

It’s not only that America’s so-called paper of record has never apologized for its over-the-top coverage of the Clinton emails or the deeply flawed story about the FBI Trump-Russia probe. It’s that the Times has shown a stunning lack of curiosity about finding out what went wrong….

Last week’s indictment of McGonigal is a classic case of raising more questions than were answered. The evidence presented by prosecutors suggests the FBI counterintelligence expert wasn’t introduced to Deripaska until his waning days with the bureau in 2018, aided by a pair of Russian diplomats. In 2019, after he’d retired, the indictment says McGonigal went to work for the oligarch to help him evade U.S. sanctions and to investigate a rival. But the Times also reported that U.S. counterintelligence — in which McGonigal had been a key player — had tried unsuccessfully to recruit Deripaska as an asset in the years around the 2016 election.

Like the Woody Allen character Zelig, Deripaska — a 55-year-old aluminum magnate who at one time was the richest man in Putin’s Russia — is turning up in the background everywhere in the ongoing corruption of American democracy. The oligarch’s history of multimillion-dollar business dealings with Paul Manafort — T____’s campaign manager in the summer of 2016 — is central to the theory of Russian interference, after it was confirmed that Manafort shared key campaign data with a suspected Russian intelligence agent also connected to Deripaska.

In 2019, Deripaska did manage to get those U.S. sanctions lifted, in a controversial deal backed not only by Team T____ but critically by then-Senate Majority Leader Mitch McConnell. That same year, a Deripaska-linked aluminum company announced it would build a large plant in Kentucky, where McConnell was running for reelection. (It eventually wasn’t built.) This is the same McConnell who, during that critical fall period in 2016, refused to sign a bipartisan statement warning about Russian election interference.

Another coincidence in a scandal that is drowning in so-called coincidences.

It’s becoming clear that the tamping down of the most explosive parts of the Trump-Russia story is the greatest case of gaslighting since the movie [of that name] hit screens in 1944. It’s not just the FBI leaks in New York. We also learned last week — yes, thanks to that same New York Times — about the extraordinary and ethically dubious lengths that T____’s second attorney general, William Barr, and Barr’s handpicked special prosecutor, John Durham, went to to try to prove the FBI was out to sink T____. That’s the exact opposite of what really happened. Indeed, the Times noted the only major criminality turned up in the Durham probe was a potentially explosive new charge of financial impropriety — by D____ T____.

Seven years later, the lack of accountability and justice for the gaslighting of American democracy is appalling. Barr did a remarkable job in blunting the investigation by special counsel Robert Mueller, including squashing his findings about obstruction of justice by the T____ administration. A much-hyped probe by Justice Department inspector general Michael Horowitz into the FBI’s New York office took four long years and failed to find the leakers. And new revelations — including that tip about T____ financial crimes that Italian intelligence passed on to Barr and Durham — continue to surface.

Why does it matter? T____ is no longer president, after all, and America has a lot of other problems, with police brutality and mass shootings currently on the front burner. Yet when it comes to this all-encompassing T____-Russia scandal, the past isn’t even past. The seemingly untouchable 45th president was in New Hampshire and South Carolina this weekend, campaigning to become the 47th. The man that critics call “Moscow Mitch” McConnell could return as majority leader in that same election. And Putin’s obsession with Ukraine — always a focus of his U.S. interference and T____ dealings — has become a war with dire global implications.

More importantly, this never-ending scandal has demolished our trust in so many institutions — an FBI that seems to have corrupted an election, a Justice Department that covered up those deeds, and, yes, a New York Times that enabled several lies instead of exposing them.

The Untold Story of “Russiagate” and the Road to War in Ukraine

If you run a newspaper and want people to pay attention to an important article, don’t make it 10,000 words long (which would amount to 30 typewritten pages) and don’t publish it two days before a national election. Jim Rutenberg, a reporter for The New York Times, wrote just that kind of article. “The Untold Story of ‘Russiagate’ and the Road to War in Ukraine” was published on November 6, 2022, two days before the midterm election, and hardly anybody seems to have noticed.

A few days earlier, the Times had printed a summary of Rutenberg’s article, written by Rutenberg himself, but the summary was just one of many “live” updates that day regarding the war in Ukraine. The Times put it between “Russian military bloggers criticize the Kremlin for rejoining the Ukraine grain deal” and “Poland erects a razor-wire fence along its border with Russia’s Kaliningrad”. I doubt many people noticed.

Here’s the summary:

Russia’s meddling in Trump-era politics was more directly connected to the current war than previously understood.

President Vladimir V. Putin’s assault on Ukraine and his attack on American democracy have been treated largely as two distinct story lines.

Yet those two narratives came together on a summer night in 2016 when Donald J. Trump’s campaign chairman, Paul Manafort, met with Paul Kilimnik, a Russian citizen who ran the Kyiv office of Manafort’s international consulting firm.

Mr. Kilimnik shared a secret plan calling for the creation of an autonomous republic in Ukraine’s east, giving Mr. Putin effective control of the country’s industrial heartland, where Kremlin-backed “separatists” were waging a two-year-old shadow war.

The scheme cut against decades of American policy promoting a free and united Ukraine, but Mr. T____ was already suggesting that he would upend the diplomatic status quo; if elected, Mr. Kilimnik believed, Mr. T____ could help make the plan a reality.

First, though, he would have to win. Which brought the men to the second prong of their agenda — internal campaign polling data tracing a path through battleground states to victory. Manafort’s sharing of that information would have been unremarkable if not for one important piece of Mr. Kilimnik’s biography: He was not simply a colleague; he was, U.S. officials would later assert, a Russian agent.

In the weeks that followed, Russian operatives would intensify their hacking and disinformation campaign to damage Hillary Clinton and help turn the election toward T____. What the plan Mr. Kilimnik offered on paper is essentially what Putin … is now trying to seize through sham referendums and illegal annexation.

This second draft of history emerges from a review of the hundreds of pages of documents produced by investigators for the special counsel, Robert S. Mueller III, and for the Republican-led Senate Select Committee on Intelligence; from impeachment-hearing transcripts and the recent crop of Russiagate memoirs; and from interviews with nearly 50 people in the United States and Ukraine, including four hourlong conversations with Mr. Manafort himself.

The Russia investigation and its offshoots never did prove coordination between the Trump campaign and Moscow, though they did document numerous connections. But to view the record through the war, now in its ninth month, is to discover a trail of underappreciated signals telegraphing the depth of Mr. Putin’s Ukrainian obsession.

Mr. Rutenberg could have added that viewing the historical record in the context of the war also helps explain Russia’s support for the ex-president and why he and his most rabid supporters are still taking Russia’s side.

Florida and Bush v. Gore Set the Stage for 2024

You could say the 2016 election was stolen when the Republican FBI director James Comey sent an extraordinary letter to Congress a week before Election Day to announce nothing of real importance regarding Hillary Clinton’s email. That gave our corporate media the chance to flog the email story one more time, convincing more than 78,000 wavering voters in Michigan, Pennsylvania and Wisconsin to abandon the candidate everybody thought was going to win. The 46 Electoral College votes from those three states put the Republican candidate in the White House.

You could say the Republicans stole that election, but that wouldn’t be quite accurate, because it’s doubtful the dimwitted, self-righteous FBI director was trying to steal the election when he ignored a Justice Department rule and made his last-minute, election-altering news. He was simply trying to cover his ass, fearing that his Republican friends in Congress would be upset with him if he didn’t tell them what he knew a week before the election and their guy ended up losing.

No, it was the 2000 election the Republicans actually stole.

I’d forgotten how blatant the theft was until I stumbled upon a 2001 article in the London Review of Books by law professor Bruce Ackerman. The article is called “Anatomy of a Constitutional Coup”. It explains in detail how the Republicans stole that election. Here’s the last paragraph:

Suppose I had been reporting on the recent election of Vicente Fox as President of Mexico. I would have described how a mob of Fox’s partisans stopped the vote count in Mexico City, how Fox’s campaign chairman used her authority as chief elections officer to prevent the count from continuing, how Fox’s brother exercised his position as governor to take the Presidential election out of the hands of the voters, how the Supreme Court intervened to crush, without any legal ground, the last hope for a complete count. Would we be celebrating the election of President Fox as the dawn of a new democratic day in Mexico?

Replace Mexico with the US, Mexico City with Miami, and Vicente Fox with George W. Bush and that sums up what happened to us in 2000.

If you have the intestinal fortitude to read Professor Ackerman’s fascinating article, you’ll understand why (assuming they don’t win the old-fashioned way), Republicans will almost certainly try to steal the presidential election in 2024. They got away with it in 2000. A mob of Republicans intimidated election officials in Miami; Florida’s Republican Secretary of State interfered with the vote counting; Republican Governor Jeb Bush got the Florida legislature to create an “alternate” slate of electors; and the Republican majority on the Supreme Court used their august authority to finish the job.

Of Course It Was Collusion

Which, yet again, is not the same as criminal conspiracy (although it was probably that as well). From The New York Times:

The Biden administration revealed on Thursday that a business associate of T____ campaign officials in 2016 provided campaign polling data to Russian intelligence services, the strongest evidence to date that Russian spies had penetrated the inner workings of the Trump campaign.

The revelation, made public in a Treasury Department document announcing new sanctions against Russia, established for the first time that private meetings and communications between the campaign officials, Paul Manafort and Rick Gates, and their business associate were a direct pipeline from the campaign to Russian spies at a time when the Kremlin was engaged in a covert effort to sabotage the 2016 presidential election.

Previous government investigations have identified the T____ aides’ associate, Konstantin V. Kilimnik, as a Russian intelligence operative, and Mr. Manafort’s decision to provide him with internal polling data was one of the mysteries that the special counsel, Robert S. Mueller III, sought to unravel during his two-year investigation into Russia’s election meddling.

“During the 2016 U.S. presidential election campaign, Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy,” the Treasury Department said in a news release. “Additionally, Kilimnik sought to promote the narrative that Ukraine, not Russia, had interfered in the 2016 U.S. presidential election.”

Rachel Maddow responded on her MSNBC program tonight:

We now know the T____ campaign secretly gave their own data to Russian intelligence in the middle of that attack, which again presumably helped what the Russians were doing. . . . 

What’s the definition of collusion again? Not just passively benefiting from somebody else’s crime, but actively helping them commit it? Is that what we call collusion? Tell me more about how the whole Russia thing is a hoax.

Maddow covered the topic for more than 20 minutes. As of this moment, the whole segment  is available on YouTube. Twelve minutes is available from MSNBC.

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