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Remember that the post-2020 US election Time article "The Secret History of the Shadow Campaign That Saved the 2020 Election"? Somewhere between a victory lap and credit-claiming at a time it was generally thought Trump's political prospects were dead, it was a rare look behind the scenes of retroactively-admitted coordinated political obstruction and shaping efforts.
It was also the article with the memorable distinction of-
Well, the New York Times on Sunday published a more pre-emptive form of democratic fortification: The Resistance to a New Trump Administration Has Already Started.
The article in short is a look at different wings of the Democratic Party apparatus, and steps they are taking in anticipation of a Trump victory to foil the predicted efforts of the 2025 Project. Some of these fears seem a good deal less grounded than others- Trump has been an abortion moderate such that it's hard to see why a Democratic governor would need to stock years of abortion supplies in a state warehouse beyond political theater- but then the article is quite likely a form of political theater. As far as election-year advertising goes, it's both a 'here are all the horrible things that could happen' fear campaign-
-with the ACLU specifically focusing on four areas of potential lawfare-
-but all with a back-edge 'but we thwarted him before and can do it again' of tribal-protection promise.
Not necessarily optimistic, but a 'we will fight for you' solidarity / call for support framing.
While there is the occasional (potentially deliberate) amusing word choice in ways that anyone who has used the term the Cathedral might appreciate-
The core strategies include the following, none of which are particularly surprising but which are good to see identified clearly in advance:
-Passing executive actions in the Biden administration before certain timelines so that Trump can't immediately revert them
-Litigation waves to tie things in court, with recruitment of sympathetic plaintiffs with likely standing already occuring
-Implicitly by virtue of the acknowledged past strategies and current participants, more protests
-More explicitly legal preparations to prevent/limit federal intervention in protests
-A national-scale counter-ICE network to disrupt immigration raids
-Pre-emptively doing self-auditing of activist group finances in preparation of politically motivated IRS scrutiny
-Various state-based nullification theory application (such as 'inter-state commerce doesn't apply to FDA if I already have the goods in-state')
-Use of Never-Trump 'ex-Republicans' groups as part of the Democratic network, especially the Principles First organization.
(Principles First was a Never Trump wing of the Republican Party associated with Liz Cheney that started in 2022 during the anti-Trump former Republican establishment's efforts to reassert control / torpedo Trump's post-presidential prospects by cooperating with the Democrat-led impeachment trial. Since then, and her fall from the Republican Party, it's been casting itself as an alternative to CPAC. Interestingly it also works in concert with Ranked Choice voting lobbying. (In the US, ranked choice voting is often, but not always, associated with the Democratic Party, at least in the sense of pushing for it in Red / Purple, but not Blue, states.)
None of this is unique, unusual, or dangerous. Leftist NGOs and Democratic governors/AGs preparing for a potential second term of Trump. Sinister-sounding quotes like "controlling the flow of information" and "democracy-proofing our institutions" but nothing actually out of the ordinary in terms of real actions. I'll remind you that the vast majority of the actual escalation has come from Republicans. Remember J6? Remember "the election was stolen!!!" 70% of Republicans still believe that crap.
Trump will try some hamfisted executive orders, which will get massacred in the courts like much of his EO's did in his first term. He'll declare victory anyways, and the base will love him because they desire the appearance of "owning the libs" more than any actual substantive policy changes.
J6 is an escalation over what? It hardly was an especially powerful riot. It was at a legitimate place of protest. And we've now long known that the main failure was a lack of staffing which is currently at the point where the question is, "Were McConnell and Pelosi stupid, or intentional?"
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The actual escalation was a 10-year push to legalize racial discrimination against the country's ethnic majority, with no evidence that this would do any good for society, or ever stop.
This is an Iraq War tier screw-up. If Democrats were facing an actual world-historical political genius instead of a WWE character, they would be utterly fucked.
All of these actions are meant for one purpose - to avoid necessary reform.
Back in the 1970s, it was still early, and the exact amount by which the racial gaps could be closed was still speculative, so implying that they could close the gaps was speculation rather than a lie. As late as 2010, they still had relatively serious academics like Roland Fryer, or people studying lead exposure, who were able to show some modest results, and they weren't trying to do "race conscious" policy, so they didn't need the higher standard of evidence that explicitly racial policy requires.
Since then it's been wall-to-wall accusations like "there are too many white and asian men at Google" based on numbers that are completely made up, and attempts at racially discriminatory institutional and government policy that has to be stopped by the courts.
They have been lying to their base since 2014 about what is feasible for them to accomplish, and expecting everyone else to just take the heat.
January 6, a political riot following a year of weaponized political rioting, is not important. Democrats either do not believe that Donald Trump poses any significant risk of a fascist takeover, or they believe that being racist is more important than avoiding risk of a fascist takeover. If it were otherwise, they would simply stop being racist.
If you think you're facing down an ultra-fascist, then you capitulate to moderates and give in to their demands in order to push the potential fascist power base below 50%. You do not double down on weird HR-ified collective inherited racial guilt for the majority of the population.
Russian disinformation accusations are irrelevant. Russian collusion accusations are irrelevant. There is no reason to believe either of them from a party who are so desperate to be racist for no other reason than to selfishly gain and preserve power. Again, the stuff they support is not based on science. Kendi and DiAngelo are not scientists. Collapsing all of race into "W vs BIPOC" doesn't even match regular stats, it's just nasty in/out racial coalition politics.
If you disagree, then you can explain how this garbage, which would be recognized as far right if it were occurring in the other direction, gets stopped.
There’s also option c)- democrats are delusional and think their race/gender agenda is popular.
There’s some support for this- democrats who acknowledge that CRT and trans is unpopular tend to be begging their fellow democrats to shut the fuck up about the topics.
If someone is actually smart and self-aware, and then bans all research into like, aircraft development for some reason, then they will integrate the knowledge of that ban back into their information system.
If you ban aircraft research, then you know that you do not know aircraft capabilities, and will adjust your thinking accordingly.
Failing to reintegrate their information control back as uncertainty is not an argument in favor of Democratic governance.
No, it isn’t. In fact I explicitly called democrats delusional. I simply disagree that anti-white racism is a major part of their motivation, even as it clearly has some place in their coalition.
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Further evidence for this comes from Hollywood and other businesses - organizations addicted to making money but seem incapable of not leaving money on the table by fucking with their customers etc because of obviously unpopular woke politics.
A lot of those woke movies also suck as movies, though. I think a lot of it is shoveling woke in to try to shield the directors/writers from criticism.
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This is extremely incorrect - the vast majority of the actual escalation has come from the intelligence community. It wasn't the Republicans who set up crossfire hurricane or ginned up the fraudulent Carter Page warrant. Those were the actual attempts at "democracy-proofing our institutions" and they began before Trump even took office.
EDIT:
To avoid duplicating reply chains, I saw you make this comment later on.
No, it wasn't! There was no real or serious attempts by the Russians to get Manchurian candidate Trump into office. The only role played by the Russians in that election (apart from posting a few BLM memes on facebook) was to provide the HRC campaign with a bunch of fake dirt they could use (via the Steele dossier) to have the Trump campaign spied on.
And of course there is zero evidence Russia conspired with the Trump campaign or Trump.
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The Russians were trying, as are the Chinese and Indians and Mexicans and whatever other foreign agent out there. It just so happened that the Russians found a receptive party in Trump who is uniquely predisposed to liking Russia because of Trumps stupidity, admiration for Strong Daddy, and predilection for blonde fuckdolls that look like his daughter. Trumps 2016 election success on his own was assisted by Russia as much as it was by disgruntled DC czars with a bone to pick with Hilary or Berniebros pivoting away.
The success of Russias objectives through Trump is a sign of Trumps own policies happening to dovetail with Russia, not Russian success in subverting Trump. Nevertheless, as Ben points out below, it remains true that Russia was constantly trying to find ways to subvert the USA and its election processes. The commies actively funded the Black Panthers, the Internet Research Agency blackpills bodybuilding.com on St Floyd.
Not a single part of this is true. "Blonde fuckdolls that look like his daughter"? Trump was not some "receptive party" to Russia -- after one joke about wanting Russia to release Hillary's emails, years of investigations could find no collusion between Russia and Trump. The amount of Russian interference into the 2016 election was near-zero.
This is a lazy cliche. How did Russia actualy benefit from Trump's presidency?
Trump's campaign chair was literally convicted of acting on behalf of a foreign government which he received millions of dollars from. Granted, it was the Putin flunky Yanokovych rather than Putin himself, but still.
The natural conclusion of this is that Trump was a victim of the Russian government's actions. Just like how when Pelosi's driver turned out to be a Chinese spy, she was a victim of the Chinese government's actions.
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People do this all the time, as even Wikipedia admits:
https://en.wikipedia.org/wiki/Foreign_Agents_Registration_Act
Paul Manafort got convicted for something that is commonly done that nobody was ever convicted for, until they wanted pretexts to jail Trump's people, which then gets lazily conflated into, "Trump-Russian collusion". Ten years on and there is still no evidence that anyone on Trump's campaign colluded with Russia in any way, but this pretext can't be let go of because it sounds much better than admitting that new standards were invented to prosecute Trump's people, and only Trump's people.
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This is incorrect, or as you would hyperbolically put it, "extremely" incorrect. Trump wasn't a total puppet, but Russia was definitely helping him. The activities of the Internet Research Agency are now public knowledge after Prigozhin died in a fireball after missing his shot at the king. Campaign staffers such as Papadopoulos met with RU intelligence agents to arrange for embarrassing email leaks from people like Podesta, lied about it several times, and was sentenced to prison. Many other individuals such as his campaign manager(!) had suspicious links to Russia, and there has been plenty of additional evidence that Russia was trying to influence the election. Some of it was just to delegitimize democracy, while much of it was to prop up Trump. Is this really hard to believe? Russia has been interfering in US elections since the Cold War, and history has shown how much friendlier Trump has been to Putin compared to Biden or Hillary.
Manafort lobbied foreign governments without being registered, which was a technical requirement widely unfollowed in the industry until the FBI prosecuted Manafort over it. Again, there was no actual Trump-Russia collusion, so the argument has to rely on vagueries like "suspicious ties".
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Papadopoulos was ambushed by FBI agents who pretended he wasn't under investigation, asked him questions until he got a detail wrong, and then charged him with lying to the FBI. They had to invent this process crime because they had no other crimes to charge him with. But they did leak stories to the press that made it seem as though Papadopoulos had been up to sinister Russian collusion schemes, because this is how they made what they were doing seem defensible to a gullible part of the public.
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I'd already mentioned this - I don't think their posting a bunch of BLM memes was enough to have any kind of measurable impact on the results of the election. I'll take concerns about Russian influence on American elections seriously when they get to the point of having a 10th of the impact that the Israelis have.
This ties in to the corrupt origination of crossfire hurricane - like the Carter Page warrant and Alexander Downer's involvement etc. If you want to talk about this incredibly complicated and opaque topic it will take an entire thread to hash out all the details and points of agreement.
Wikipedia is worse than useless for this and the page you've linked even debunks some of the claims made in the article. The DNC and Podesta leaks were almost definitely not the result of Russian action, for instance. The US intelligence community can't actually be trusted on this topic - we know they were actively lying to deceive both when they made the Carter Page warrant application, and when they released the letter condemning the Hunter Biden laptop.
No? Hillary was literally buying fake kompromat from the Russians in order to attack Trump, and I can't see any indication that he was acting in Russian interests except coincidentally - there's some undeniable overlap in the policies that both Trump's base and the Russians support (like ending the forever wars and not purposefully starting a proxy war against Russia) but that isn't really a meaningful argument.
If memory serves it was in the small 7 or 8 figure spend. It was dwarfed by orders of magnitude what Clinton spent. If the Russians are that effective….then maybe they deserve it!
No the simple explanation was yes there were some Russian troll farms but they had a negligible impact on the election and there is zero connection with Trump.
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I don’t think it’s the slam dunk people have been treating it as. For Trump to be colluding, he’d have to know about and approve of the things Russia was doing. Other than one televised statement that could arguably be a joke, nothing he did seemed to point to him knowing about any of it. Maybe he didn’t say anything, but given that he couldn’t help himself in the middle of a presidential debate, I don’t see it. If he can’t tell the proud boys to leave his campaign, how does he do so easily in the case of Russia?
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Where are the republicans inventing new legal theories to prosecute their political opponents? Where are the republicans forcing businesses to boycott their opponents organizations? Where are the republicans using partisan organizations assessments of their ideological opposites as a justification to enact a domestic spying program?
"Inventing new legal theories" is an inherent part of the common law system. Let's take a fairly straightforward case: Smith agrees to by a cow off of Jones for $100, with no terms regarding the order of performance. Several weeks go by and the transaction is not consummated. Each sues the other for breach of contract. This situation vexed judges for literally hundreds of years, until one brilliant judge finally ruled that, to the extent practical, in the absence of any contrary terms both parties are to perform simultaneously. This ruling seems obvious in retrospect, but it was a new idea when it came out. This obviously doesn't involve a lawyer arguing that, since he'd be admitting that the other party hadn't breached the deal, but lawyers use "novel" legal theories all the time. The law as it exists doesn't cover every exact situation, and when you feel that your client has been wronged, or has been unfairly sued, or even that certain evidence should or shouldn't be admitted, you're probably making a novel legal argument.
Typically, inventing new legal theories as part of the ordinary process of law is a bit suspect when they’re being invented specifically to prosecute the candidate for the opposing political party.
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All of the laws Trump is being prosecuted under are codified statute, ie. not common law in the strictest sense.
Strictly speaking they aren't, but that isn't really a concern as a practical matter. I practice an area of tort law that's mostly common law but has been somewhat modified by statute. If I'm arguing before a judge the standards aren't any different whether I'm arguing common law or statute, and most of the statutory argument is indistinguishable anyway because it's still based on judicial interpretation. I don't go into an argument thinking "Well, this is statute so I have to do this differently" or anything like that.
How much of the law you practice is judge made, versus prosecutor made?
None of it is prosecutor made because, first, I'm a civil lawyer, so there are no prosecutors involved, and, second, because prosecutors don't make laws. They can propose theories of liability and it's up to the judge to decide whether they are persuasive or not. It's all judge made, unless it's statutory.
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Unless I'm misunderstanding, he practices civil law. So no prosecutors, just plaintiffs.
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I don't think this is an accurate description of any of the Trump prosecutions. It mainly gets levelled at the falsification of business records case, on the theory that Bragg used a federal crime as the enhancer to kick it up to a first degree charge. But this isn't accurate. He used a state crime - New York Election Law Section 17-152. That charge itself refers to influencing an election by "unlawful means", and the unlawful means referred to in this context are violations of Federal election finance law, but my understanding is that it's well established by precedent that you can use federal crimes in relation to this statute. As always IANAL and I might be wrong. But as far as I can tell, although it's a bit of a convoluted approach to take, it's also one that specifically avoids using laws in unprecedented ways.
Republicans however certainly have invented new legal theories. They invented a new legal theory to overturn the 2020 election using competing slates of electors and having Pence refuse to certify disputed results. They invented a new theory to defend Trump by claiming Presidents have absolute immunity to criminal prosecution.
And, look, there's nothing wrong with inventing a new legal theory. You try it out, you test it in court, you see if it flies. And I think it's kind of natural for it to be the Republicans who are testing new ground here - the courts have become increasingly right wing (especially SCOTUS), and those new court majorities have different ideas about how laws should be interpreted. But if you're going to take the position that advocating novel legal theories for political purposes is some kind of no-no, then you really ought to be pointing the finger in the other direction.
You are incorrect. Bragg did not actually specify in the filing which charges he was using to upgrade from misdemeanor to felony. That's what was novel!
I will repeat myself a million times if I have to that "overturn the 2020 election" presupposes your side of the argument as the only legitimate one.
Besides, the competing slate of elector scheme is not nes or novel: it was used in 1876, and JFK submitted alternate electors in his dispute over Hawaii.
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The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.
Notably, the Republican Party decided not to do this. Like, there weren’t competing slates of electors. Mike Pence had openly said he wouldn’t go along with that plan. The most partisan red state where Trump disputed the results had a state government- made up of all republicans- who told him to eff off. In fact, republican elected officials who could have turned it into a matter for the courts chose to admit trump lost. Not as a general rule, as a universal one.
I’ve yet to see even the smallest of small democrats opposing the lawfare, targeting of conservative groups, criminal cases invented out of whole cloth, attempts at censorship, etc.
What are the new legal theories embraced by the 6-3 majority on scotus? Name them. Their most controversial, and predictable, decision was dobbs, which even liberals mostly admitted would be legally correct. Pretty much all the precedent overturned by the changing balance of the court has been in the form of things like changing the constitutional test applied in x specific situation- hardly novel legal theories.
The closest thing to a novel legal theory pushed out of conservative courts would be kaczmyrak’s decision on mifepristone, which got stayed immediately and slapped down by scotus.
No it's not. The John Edwards case ran on the exact same theory.
Parts of the party refused to go along with that plan, sure. And they mostly got purged for disloyalty to the guy who spearheaded it.
Off the top of my head, the Major Questions Doctrine is one obvious example of a new legal theory adopted by SCOTUS. It's also highly likely they will be soon adopting a new legal theory in the area of administrative law, abandoning the current Chevron Deference legal theory. Again, I have 0 problem with them doing that, sometimes existing precedent is plain wrong and generally speaking I think the current court has made pretty good rulings.
ABC:
Hm, but it didnt work to find Edward guilty.
Correct, the prosecution was unsuccessful. Edwards argued that the payoff was made to hide his affair from his wife and not to influence the election, and presumably at least some of the jury thought that was plausible.
But recognise that this is a case of Edwards successfully convincing (some members of) the jury that the legal theory did not apply to him. it's still a case where the same legal theory was prosecuted in the past.
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Not only didn’t it work but the DOJ and FEC saw it as a resounding defeat. They viewed the matter as settled.
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I bolded the operative part that is completely different. Edwards did not pay for the expense out of his own pocket. Which is why when you later say:
...you're completely, 180 degrees, backwards. Edwards used somebody else's money. Trump used Trump's money, via an intermediary.
That's a factual difference, but it doesn't change the legal theory. Both cases hung on the idea that paying off the woman you cheated with is a campaign expenditure. If you concede that point, then the question of whether you get someone else to do it and then pay them back, or get someone else to give you money to do it, or get someone else to do it while the money never passes through your hands at all, is all pretty immaterial. All of those actions violate campaign finance law in some way, if and only if the payoff counts as a campaign expenditure.
This is just so wrong.
You are using as precedent a case that is seen as a disaster for the government as precedent. It is precedent; just not the way you think it is (ie it turned the FEC and DOJ off of the theory you espouse).
There is a big fucking difference between a presidential candidate funding his own campaign and a third party. The former has zero limits; the latter does. The latter could be criminal if it goes past the limit.
If it were a campaign contribution, then the only thing Trump would’ve needed to do is report something in 2017. The prosecution’s theory is somehow the 2017 reporting stole the 2016 election. Time travel folks!
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Negative. Your confusion comes from your explicit refusal to engage with the history of campaign finance laws, and the court cases that shape it. Most obvious in this setting is Citizens United, which narrowed the scope of the reasons which can ground regulation of these types of expenditures, to the extent that they can be considered expenditures (leaving aside this question for the moment and whether the FEC's current interpretation of the statute was actually informed by the failure to secure a conviction of Edwards), to only quid pro quo situations. Given this precedent, it is absolutely material whether there is a quid pro quo situation, and thus, a huge material difference between a candidate using his own money versus a candidate using someone else's money. It does not make sense to say that Donald Trump was entering in a quid pro quo relationship with Donald Trump by using his own money, whereas it is entirely plausible that the Edwards situation could be argued to constitute a quid pro quo.
We can reserve the question of whether it could count as a campaign expenditure in various hypos, as we discussed elsewhere. Suffice to say, the FEC of today disagrees with you, perhaps as I mentioned, in response to the Edwards debacle. The FEC might have agreed with you in the past, back then, but lots of developments have happened in the law since then, and at this point, they disagree with you.
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Edwards was prosecuted for using campaign funds. Trump was prosecuted for not using campaign funds, on the theory that paying Stormy Daniels was really a campaign contribution!
I don't believe this is correct. The donors supplying the hush money in the Edwards case gave the money for the specific purpose of paying off his mistress. The money only counts as campaign funds if you embrace the legal theory used in the Trump case - that paying for an NDA to shut up the woman you cheated on your wife with is an election expense.
Edwards literally solicited donors to help pay his expenses. That's at least a theory of using campaign monies (monies he campaigned to get) for private ends. Trump used his own money!
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I take it you've never been to law school before, but it goes something like this: You read cases as your class assignments and the professor asks questions about them. Most of the questions are hypotheticals that change the facts slightly to see if you can apply the principles of the ruling to different situations. Then the professor poses a hypothetical that's nothing like the original fact pattern and asks what the result will be. Then when finals come you get more questions like that where nothing is exactly on point and you have to argue based on broad principles alone. Then you get to do the same thing in the bar exam, especially the multistate, where they might give you a fact pattern where you read it and you think "okay, the guy is clearly liable" and the final question asks "If the court finds that the defendant isn't liable, what is the probable reason?" and gives you four crappy answers from which you have to choose the most plausible.
As a practicing attorney, yes, most cases are boring and straightforward, and don't require too much creativity. But this isn't always the case. New situations require new legal theories. Look at autonomous vehicles; there's a whole universe of potential problems that could arise there that the law is seemingly unequipped to deal with, except through general principles. "No one has been convicted based on this specific fact pattern before" isn't a defense. This is especially true in the world of white collar crime, where the argument isn't so much that the defendant didn't do what the prosecution said he did but that what the defendant did wasn't a crime at all. Not everything is going to slot into convenient and obvious categories, and unless there's a viable legal argument for why a particular course of action shouldn't be a crime, a jury is going to get to decide.
I think what’s missing here is the background. The background is that a DA is supposed to prosecute crimes not persons. Bragg ran on prosecuting Trump (ie the person).
And then to get Trump, Bragg used a NY state law that hasn’t been used in god knows how long coupled with a very dubious theory of a questionable FECA violation as a predicate of the rarely used NYS law. Keep in mind the people with authority to prosecute FECA violations passed on this (both criminally and civilly). The prior DA passed. That should tell us something! It tells us about selective prosecution and show me the man and I’ll show you the crime.
AND, they had to first corner Cohen on other charges into accepting a plea deal in order to "establish" that a (uncharged, untried, undefended) crime had taken place which could then be used as the basis for charging Trump in such a convoluted manner.
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He didn't run on prosecuting Trump in the sense (as I have seen implied in some conservative outlets) that he made it a campaign promise. He ran on prosecuting Trump in the sense that he cited his participation in the AG investigation. In other words, he ran on his record, which is something every AG candidate does, especially when they were involved in a high profile case.
Here is one example
“Let’s talk about what’s waiting for the new DA. The docket. We know there’s a Trump investigation. I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation. I also sued the Trump administration more than 100 times for (Deferred Action for Childhood Arrivals), the travel ban, separation of children from their families at the border. So I know that work. I know how to follow the facts and hold people in power accountable."
Sure he talked about what he did but the clear implication that he would follow through on prosecuting Trump.
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There's a fig leaf, but it's an embarrassingly narrow one.
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No, but "any lack of clarity about what the law does and does not allow must be resolved in favor of the defense" is such a rule - the Rule of Lenity, to be precise. I know only Neil Gorsuch and like 17 other principled civil libertarians care about it, but still!
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No it has never been established to at federal law (let alone FECA) can be a predicate for unlawful means. Never. Not once.
In fact it isn’t clear the NY statute has been used in fifty years let alone tying it to a federal crime.
There might not be anything exactly on point, but there isn't any case law I'm aware of that explicitly prohibits it, and the "lay of the land", so to speak, suggests it's okay. The courts have already ruled that Federal offenses could count for the old "habitual criminal" laws, and RICO cases usually involve state predicates. Neither of these is exactly on point, but they are indicative of the idea there isn't any problem with the cross-jurisdicational aspect of the case. I'm not entirely sold on the idea that there isn't an argument here, so if you have one, I'd love to hear it, but nothing I can think of off the top of my head suggests that this would be a problem.
I think those things are different. The first is using prior convictions (ie things adjudicated) as opposed to one sovereign substituting its opinion for the other. The second is also different in that federal law is a higher authority (within its limited scope). This is the opposite and I think that is important.
First, there is the preemption issue. Congress explicitly made the FEC and the DOJ the sole enforcers of FECA. This makes perfect sense because FECA governs national elections; not local. While most federal elections are local (1) the presidency is not and (2) the race in a particular race can have a big impact on the overall make up of the national body. Trying to have uniform rules makes sense because the rules implicate national elections. So this is a core federal interest and one congress spoke explicitly about. This makes for a very strong preemption argument. You could have NY take one view as to what is an unlawful contribution and another state take a complete opposite view colorable (hell there was a debate within FEC). So a candidate could be in a literal catch 22.
There is also the problem that here FECA is an incredibly complex set of laws bereft of a large body of caselaw to elucidate it and ride with first amendment issues. No wonder almost al action is civil in nature! Note this is even worse than it appears since a state judge will maybe encounter FECA issues once in a life time while FEC and DOj have special units dedicated to it. This is one where the experts in the law should be deferred to (ie another argument for preemption).
Third, unlike other cross border issues (where another state Supreme Court can issue an advisory opinion) there are no advisory opinions that can be issued by federal courts.
Fourth, Andy McCarthy makes a really good argument that the NY state constitution forbids incorporation by reference — especially in the context of non NY law. Andy also asks “where is the limiting principle — if NY can enforce another sovereign could the prosecution be based on sharia law.” Related to this I think (but could be wrong) the FECA law passed after this NY law was enacted. So we really think it was reasonable to believe NYS legislators incorporated federal election laws that didn’t exist at that time?
Fifth, there is the due process issue here of whether anyone was on notice that unlawful means h include federal law. There is a related (though somewhat disticint) rule of lenity issue.
Finally, I think these fears were borne out in this litigation. The experts passed but the partisan hack amateurs took it up. They really hid the ball that a criminal FECA violation requires willfulness (ie knowledge that it was wrong — no where did the prosecution even come close to that) but the judge decide not to explain what willfulness is as distinct from general intent. They also arguably badly mangled what a contribution is and didn’t properly explain when the reporting would occur (ie if you read everything in favor of the prosecution Trump allegedly misstated financials to win the 2016 even though he would not have to report a campaign contribution until after the election — try to make sense of that!). We could say these are errors. Or we could believe they are partisans tools of a blue state going after a red. In either case they upset the federal interest in having uniform election campaign laws and enforcement of those laws. The federal interest is massive while the state interest is relatively minor. This makes for a compelling preemption argument.
The thing that you and a lot of Trump supporters seem to miss when discussing the case is that you assume that the prosecution had to prove that Trump had to have committed the FECA violations himself in order to be criminally liable. That's not true; neither party disputed that the law applied to covering up misfeasance by someone else. Here, they had Cohen testify that he knew the payments were illegal at the time he made them, and that Trump reimbursed him through phony invoices for nonexistent legal work. That's the prima fascia case right there. Cohen was investigated and pleaded guilty (though his plea couldn't be used as evidence in Trump's case), so there's nothing controversial about whether a FECA violation actually occurred, unless you want to talk theoretically, which is pointless since Cohen isn't going to appeal.
Whether or not the case is preempted is a trickier matter, but New York didn't charge Trump with any campaign violations. He was charged with creating fraudulent records. In fact, the fact that this law has never been applied to FECA violations before actually tips the needle against preemption. If the law isn't aimed at regulating elections but at preventing fraud generally, then it's harder to argue that it's intruding on the policy goals that congress reserved to the Feds. Courts have already ruled that consumer protection issues relating to campaigns aren't preempted, even though they're directly related to campaign violations, so it's less likely that anyone would do so here. Not that there isn't an argument to be made, it just isn't as strong as some think it is.
I'm not an expert on the NY constitution so I'll leave that question to the Court of Appeals, who have the final say. I will say that whether or not Sharia Law applies in and of itself is a moot point. I imagine Sharia Law prohibits theft, and I don't think you'd have too much of a cross-jurisdictional issue if the predicate offense was theft in a country that has Sharia. If it's one of the things we Americans find more offensive, then prosecution would likely be barred on the grounds that it's contrary to public policy. It's an interesting question but crimes in other jurisdictions being used as the basis for related charges in others isn't exactly unheard of.
I think this post is wrong on many levels.
Cohen was dead to rights on much more serious tax violations and taxi medallion schemes. They threw in the FECA violation late and he plead to it (lesser crime). There is very much a dispute as to whether Cohen violated FECA and whether Trump knew about FECA.
Second, obtaining an NDA is legal work so hard to see how it is non existent. Moreover even if it were the sole person tying Trump to it is Cohen. Cohen stole 60k from Trump which Cohen viewed as “self help.” This guy would clearly lie, steal, and cheat if it could help him in any way. You don’t convict based on a guy like Cohen.
Third, FECA requires willfulness. Trump and Co had to know it was wrong; not just intend to do the actions that are prohibited. Your theory of the case then is that Trump and Cohen knew that by Cohen doing it that it was a FECA violation even though if Trump did it himself it would not be a violation. Since Cohen was solely acting as a middle man he wasn’t key to the scheme. There was no need to go through all this “scheming” to protect Cohen when Trump could’ve just done it himself. Trump has been looked at for years and they haven’t found crimes despite being a NY real estate developer. Do we think he knew option A was criminal and option B was not, both would get him what he wants, and he choose A? It just doesnt make sense.
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This is a non sequitur. Dumb people and people trying to get a good deal for other, real crimes, plead guilty to things that aren't actually crimes all the time. There is no logical way to bootstrap that to get to "nothing controversial about whether a FECA violation actually occurred". There may be all sorts of statutory, agency interpretation, and even constitutional defenses to the claim that a FECA violation actually occurred that Cohen simply did not pursue, but would nevertheless win the day in a court of appeals.
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Lawyers arguing in new ways to new situations is just standard legal practice, e.g. when Trump's lawyers argued the presidency is not "an officeholder of the United States".
The origin of the Trump-Russia investigation is shrouded in bias, just like the investigation into Biden's son was. But in both cases it was clear that there were actual problems there. Not problems that reached up to the highest level, but problems nonetheless.
I'm not a fan of plenty of the things Dems have done in regards to their woke crusade, but in terms of concrete escalation, storming the capital and trying to overturn a legitimate election due to being sore losers was far worse and more blatant.
Democrats stormed the White House and laid siege to multiple federal buildings way before January 6th. The capitol riot could probably be considered a de-escalation since they didn't burn the Capitol building to the ground.
What are you talking about? When did Democrats ever storm the White House? I vaguely recall "sieging" federal buildings during the 2020 protests, but when did major left leaders ever support such violent measures?
The fact that you're unaware of this rather says alot of how the media propagates some things and stifles others.
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The direct comparison to J6 I can think of is in 2017, when there was a "DisruptJ20" movement, where the stated goal was:
And
Undermine the peaceful transition of power? Doesn't that sound like Insurrection? What happened to these hardened insurrectionists?
Ah, so nothing serious. But hey, at least they didn't storm the Capitol Building!
In 2020, protestors surrounded the White House and tried to break down the barriers. Trump and his family had to hide in a bunker:
At least they didn't succeed? Is that the metric we're going to use? Because then the J6 protestors should be off the hook, because they ultimately failed to do anything significant. I guess they just had the wrong amount of success, just enough to break down a barricade, not enough to break down America.
And that's leaving out all the other protests that have happened on Capital hill, some violent, some peaceful. Kids crowding congressional offices to protest Climate Change, the Kaunavaugh confirmation protests, etc. And even that is leaving out all the protests inside various state's Capitol Buildings.
Do Democrat leaders support violent action against federal buildings, such as the Oregon courthouse siege? Yes they do! Portland Mayor Ted Wheeler was among the rioters laying siege and Nancy Pelosi tweeted in support of the protestors (and against the government officials trying to resist them). If you don't remember much of what happened there, or maybe your news sources weren't reporting on it, Winston Marshall has a good 15 minute video here: https://youtube.com/watch?v=jNoxpP5Jhvo
I'm not a fan of what happened on Jan 6th. I posted in the motte that week something to the effect of, "I'm a conservative and I'm glad that Ashley Babbit was killed." But I would place it in the same realm of the riots and protests of the above, not some unique evil that members of the Republican Party have perpetrated.
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The current Vice President of the United States shilled for bail funds to get rioters out of jail (and incidentally got someone killed when a murderer was also bailed out using those funds). Congressional leaders encouraged mobbing and harassment of Trump administration staffers. The Biden DOJ made sure to exercise "prosecutorial discretion" to refrain from prosecuting criminal harassment of justices at their private residences over the leak of the Dobbs decision, after the Senate Majority leader threatened justices by name, stating that "I want to tell you, Gorsuch; I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price."
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Other than the direction of media hysteria, it’s pretty similar to the protestors who stormed congress trying to stop the legitimate confirmation of a Supreme Court justice. Nor, as an aside, did Trump or any other ranking Republican tell them to do it; Trump actually told them to go home.
‘Muh J6’ is a convenient rhetorical point for democrats to try to paint Trump as some sort of special danger, but it doesn’t stand up to scrutiny.
The SCOTUS protestors had nowhere near anywhere near the level of support for their actions. Some leftists may have supported their cause (rejecting Kavanaugh), but no major political figure egged them on for their methods. For contrast, Trump egged on J6, and only stopped supporting it once he realized it was a PR disaster. He also still claims the 2020 election was stolen.
My point isn't to prove that the Democrats are justified in anything they do, it's to argue against Rightists who are chugging the negative-partisanship Koolaid by the gallon, pointing at Leftist transgressions, some real, many exaggerated, and pretending the Right isn't doing stuff that's on-par or even worse.
Trump did not support J6. He started trying to dissuade his supporters as soon as it became clear they were breaching the capital. ‘Muh J6’ is absolutely a narrative, and it’s a narrative that is 1) false and 2) serves a specific purpose of framing the rise in negative partisanship/democratic backsliding as being mostly the right’s fault. Factually, domestic spying and targeting the opposition as major features of democrat’s regimes is something that dates to the Obama admin; the current round is an escalation of an existing trend and not a new idea, or a response to changing circumstances in 2020 or 2021.
And he is allowed to believe this. It’s not an offense against democracy to believe that a particular election was badly administered or rigged. It’s not one to claim that, even if you happen to be wrong(as Trump is; even if Georgia or Michigan was stolen, he’s been running out the Bailey so hard that it doesn’t become a truth). Democrats make shit up about red states not being democracies constantly, and have for years and years, rather than admit that they’re just genuinely less popular.
Domestic spying dates back to at least the J Edgar Hoover days, a lot of the modern stuff is pretty weak and tame all things considered, though that doesn't make it right. I don't think it's really too relevant here though.
Your narrative about Trump and J6 seems false to me. Narrative is tricky to pin down of course, so beyond narrative, many of the actual words you are repeating are objectively untrue. And I will prove it. And I never want to hear this again, quite frankly.
I'm not even going to go into the hearsay too much, nor even planning before J6 by some smaller groups. These are at least the basic facts: The last few sentences of Trump's long speech ending a bit after 1pm talk about how he wants people to walk down Pennsylvania Avenue to the Capitol to give the weaker Republicans some "pride and boldness", to make their voices heard, and how the country is at risk. Allegedly (this is a bit unclear) he wanted to go too (he said things like "let's" and "we" in the speech) but the Secret Service said no. So he goes back to the White House and watches TV for a few hours, meaning he is watching what everyone else is watching. Trump disputes this, but watching TV seems highly, highly likely given Trump's well-known habits, though it's possible he missed a bit of the earliest stuff. He then tweets out a replay of the speech. At any rate, police lines are getting pushed back and in retreat since at least the 1:30 range, they are broken up in the 2-2:30 range and a lockdown is declared. In terms of TV, it seems most channels were broadcasting speeches right up until a little after 2 when both parts of congress went into recess and the aforementioned lockdowns started. Right in that time frame (2:24 pm) Trump tweets out a tweet saying Pence doesn't have courage to protect the country. Evacuations are starting in this same time frame of House, Pence, Pelosi, etc. and also in that same timeframe we get the first people breaking into the building. In the end we know many lawmakers only missed some rioters by a matter of minutes. So the Pence tweet is kind of right as things are going down, but some TV coverage has been varied, though it seems clear that by this point most channels have been showing some sort of breach. For reference, here is the CBS coverage that day. I can't find the whole Fox coverage but at least one clip from 2:39pm included the same footage and understanding of events.
So 2:38, now it's pretty blatantly obvious on TV that shit is going down, you can see Trump tweets:
You claimed:
This is clearly wrong. Notice what words do not appear at all in the tweet: go home, stop, don't do this; nothing of the sort. Just "hey be peaceful". That's not the same thing.
To be clear, what exactly is on TV at the time? CBS shows at 2:30 protesters in the building, (though a breach was clearly first shown and noted at 2:20), and some live video of them wandering around one of the rooms, maybe the Rotunda? Most of the video available is of course of the people outside because that's where the camera crews are. TV watchers already know Pence is being evacuated. Big chevrons and titles on screen clearly say the Capitol has been breached. The anchors are saying very clearly whoa, no one is supposed to be in there. It's hard to know how peaceful/violent the protests are because no cameras other than I guess the one (presumably live feed?) inside. A bit later of course we get some reports of some shots fired (Ashli Babbitt) and then on TV over the next hour or so we see a mixture of videos and photos of people arrested, other video of lawmakers with gas masks, others of barricades in the House, etc. They get McCarthy on the phone for a bit, reports are mixed. Though McCarthy does say: "From what I know and what I was able to view, I know people are being hurt" (later interview on CBS, he expressed the same in a 3:05 interview live on Fox News). Worth noting however, that this isn't broadcast to CBS at least until about 20 minutes later. During all this time, we can clearly see on TV that people are inside the Capitol, though there are still some crowds outside.
3:13pm shortly after McCarthy is on TV via call-in, Trump tweets again:
Notice, again, nothing about going home here! Sure, there's a call against violence, especially not against cops. There's no "dissuading" going on here. Clearly he's aware that at least something is happening. There's scattered TV reports about maybe this is going to turn into an occupation, some noise about maybe the National Guard is going to show up, etc. It's again very obvious that at least some protesters are in the building.
Trump doesn't tweet anything else in the whole time. He doesn't start recording a video message about how they should "go home in peace" until 4pm.
So in summary: You could plausibly claim Trump didn't want violence, you can plausibly claim a fair amount of things. But it's very clear that Trump certainly didn't try very hard at all to dissuade any of this from happening. He called for the march, and for someone who was bragging on TV all the time about how he would send the National Guard to inner cities because of violence, "when the looting starts the shooting starts" and things of that nature, it is painfully clear that he did not have anything like that sort of reaction, and certainly wasn't on the phone calling (remember he IS the president at the moment!) for troops or a strong response or anything of the sort. We don't know many specifics about Trump and Meadows that afternoon, but according to Meadows' texts (chief of staff, usually is in close contact with the President constantly) he both had been texted extensively about how messed up things are and was in contact with the President at least as early as 2:53, so as of the 3:13 tweet we can reasonably assume they were aware of the substance of what was going on. Making the "I didn't know" defense completely indefensible.
Furthermore, it's very clear in several places that Trump wanted Pence to take a very specific action on January 6th and said as much. That's not a general feeling about things being rigged. It's a clear advocacy for not certifying!
His words were "PEACEFULLY make your voice heard" -- I don't get the feeling that you know/care too much about the actual facts here.
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Not, strictly speaking, about the Cavanaugh disaster, but there's no shortage of left-aligned public misbehavior to choose from during the Trump years:
"If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd and you push back on them, and you tell them they're not welcome anymore, anywhere." Rep. Maxine Waters (D-CA)
"This is my call to action, here. Please don't just come here and go home, go to the Hill today. Get up and please get in the face of some congresspeople." Sen. Cory Booker (D-NJ)
"You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That's why I believe if we are fortunate enough to win back the House and/or Senate, that's when civility can start again. But until then, the only thing that Republicans seem to recognize and respect is strength." Hillary Clinton
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Yeah so new that Justice Story had a view on it…. Story really was a helluva a legal mind as an aside.
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Sorry, that one goes back to the debates around the adoption of the 14th amendment. It is not new at all.
It's a novel argument because whether the president is an "officer" hadn't come up in this context. If you disagree with this, feel free to cite the court case that specifically argues this point in an identical context.
You're effectively arguing that lawyers should never be allowed to make new arguments even if the situation is different.
It came up in exactly that context in the debates on the 14th amendment.
I dug up some facts and brought the receipts. In the Colorado court that heard this play out, their decision you can see starting at the bottom of page 95.
It indicates that exactly once when the Amendment was first debated in Congress (not yet law) the issue was briefly mentioned. Mentioned as in we have literally only this one tiny and brief exchange. From the section summarizing the key points made in the Colorado case:
So the brief worry was that Davis, as an insurrectionist, was obviously barred from running for most offices, but maybe he could run for President only? Morrill thought no, he was barred from basically everything including President.
No other court cases, legal opinions, or even history is cited. Meaning they couldn't find anything else. There's other arguments too both for and against listed in the decision, but overall the decision says there is "scant evidence" and most of the other arguments have to do with the text of the Constitution in other places.
So yeah. In my opinion, if a legal theory is mentioned exactly once, and back in 1866, it is for most practical purposes "novel". It's not novel in the sense that literally not a single person ever had ever thought about the concept (clearly at least two people had, if extremely briefly), but certainly was novel in the sense that we had gone 150 years and no one had ever brought it up again as such.
It might also bear noting, when it comes to novelty, that this conversation formed a legal theory (if you can even call it a theory, it's not like they went into big detail) claiming the President WAS in fact an officer. Trump's team did not advance this theory! They advanced the opposite! It wasn't even the same claim! So it wasn't so much a "legal theory" as "one person worried about it once 150+ years ago and then decided it wasn't a big worry". And then over a century later someone came out and claimed the opposite thing. Sounds pretty novel to me!
Edits: last paragraph.
Senator Johnson: But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President
Senator Morrill: Let me call the Senator's attention to the words "or hold any office, civil or military, under the United States."
Senator Johnson: Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.
So Johnson brought up the theory, Morrill denied it, and Johnson chose not to argue further. But I didn't say the theory was accepted then; I said it wasn't novel. It's not novel.
Jefferson Davis was not involved. Jefferson Davis was disqualified by the fact that he was a Senator before he joined the confederacy; it is true that if the Presidency was not an "office" he would not have been disqualified from running for President, but nobody was worried about that; they were worried about him re-entering the Senate. Nor was anyone worried about some rebel President or Vice President running for office, for the simple reason that there weren't any.
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Please link the court case.
I don't have to dance to your tune. The debates on the 14th amendment were (obviously) prior to any court case involving it.
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Believing something is escalation?
Did you mean to reply to garrison?
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In that such sinister actions are perfectly ordinary, yes. Leaning on social media companies to suppress inconvenient stories, wiretapping the opposition campaign, fabricating evidence of Russian collaboration by the opposition, etc.
So the Democrats have a whole bunch of riots, then steal an election, and when the Republicans have one riot and complain about the election being stolen that's the vast majority of the escalation?
Federal officers were lazy and/or incompetent in their court filings, and tapped the phone of some minor "advisor" (often a minor role used to burnish credentials) who barely even worked for the Trump campaign. They tapped him after he left the campaign. That's hardly some deep conspiracy. Oh, but the FBI also chatted with a few campaign aides. Oh nooooooooooooo
Yeah, at least this claim about wiretapping the opposition campaign is total bullshit. All the evidence I've seen of actual government official interactions with social media companies was similarly quite tame and also not conspiracy-level. There was some sus stuff going on tone-wise about the Hunter Laptop thing, sure. That's a little worrying. But it wasn't a total hit job either, it wasn't like suspicion was entirely partisan and contrived. A lot of reasonable people at the time thought the whole thing was a bit weird and sketchy.
Unless you have a more specific "actual government official leans on social media to suppress unfavorable story simply because it was unfavorable" evidence to share? This is the standard I think is appropriate. Non-officials can do whatever they want as part of the normal but imperfect media landscape. For example, it's important to note that even the laptop group letter was signed by FORMER intelligence agency people!
OK, now do Watergate under your prior that everything is fine.
Almost no one seriously thinks Watergate was fine, including myself. I'm saying that nothing that has happened in recent years comes close. Your language makes it sound like we are still in the J Edgar Hoover days. Which is a pretty fringe claim that doesn't match with what we know.
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Once again, there's no evidence the election was stolen. Just an endless gish gallop from Trump, and his supporters motte-and-bailey'ing him with vastly weaker claims when pressed (e.g. "the election was stolen because the media is biased against Trump") before going right back to assuming the strong claims were true when they weren't being pressed.
Look at you, escalating by claiming there's no evidence. There was that Georgia water main break. And the Pennsylvania election law changes.
Note the leak had nothing to do with the counting pause 14 hours later (as can be verified by watching the unedited footage released) and that the PA mail in laws were passed prior to Covid by Republicans with the stated aim to help their turn out in rural areas. The fact this shot them in the foot a few months later because they didn't predict Covid and that using mail in ballots would become a partisan issue is unfortunate for them, but can't really be held to be evidence of rigging the election against Trump. They were trying to change the laws to HELP their candidates.
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The Georgia incident wasn't a water main break, it was a leaking toilet. Nobody was instructed to leave the ballot counting area. No ballots were impacted. This has been documented already.
Alright, you and @Ben___Garrison are getting two things confused. The water leak was earlier in the morning and had nothing to do with anyone leaving. At around 10 pm the Fulton County people decided to call it for the evening and began packing up. They finished around 10:30 and people started to leave, including the media and observers. When they told the Secretary of State's office they were told that they were to continue counting through the night, at which point they went back in and began counting. The water main break only ogt into this story through journalistic sloppiness, I'm guessing because someone with a news outlet Tweeted a rumor they overheard and it got reported as news. Either way, I don't see what this has to do with any evidence of fraud. I'm guessing the argument is that they wanted to get the observers out of there so they could pull all those fake Biden ballots they had hidden under the table and count them, but there's no evidence of this. It's pretty clear from CCTV footage that the ballot boxes they pulled out from under the table at 11 pm were the same ones they pushed under the table at 10:30. I don't know how the observers present would have been able to tell a fake ballot from a real one. I don't know how you can convince dozens of election workers (who are usually county employees and generally don't want to be there) to commit blatant fraud without any of them giving up the whole thing. I don't know how you could convince a Republican state government to go along with the fraud and the subsequent coverup. I don't know the mechanism for how fake ballots are supposedly generated. This entire theory makes no sense. Even if the accusations of the county phonying up a water main break to get observers out of there were true, you still have to prove the fraud.
One might further guess that the rumour got started because that's what the observers were told, if we're guessing here -- I think some of them have said so publically. This would still fit with facts on the ground -- certainly it was reported on various traditional media live on the night of.
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The facts as you present them, regardless of the water leak claim, is that vote counting continued after the observers, having been told that counting was finished for the night, left. That's substantively identical to the complaint that counting which dramatically flipped the result continued without bipartisan observation, no?
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Interesting. Somehow I follow this place pretty closely, skim the headlines most days and was nevertheless completely unaware of the full facts of this story.
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Did you read my original source? It covers this:
Yes, yes, the crooked officials investigated themselves and found they did nothing wrong.
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