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PaperclipPerfector  10mo ago (text post)   38163 thread views

Culture War Roundup for the week of June 5, 2023

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I've been ruminating on a question about Trump's prosecution. One of the common arguments I've come across is that prosecuting Trump is improper because it's just political retaliation falsely disguised as a neutral and dispassionate application of the law. In support of this argument, you could cite the fact that the apparent mishandling of government records occurs fairly regularly by similarly-positioned politicians (Clinton, Biden, Pence, etc.) and yet its enforcement appears to be selectively doled out. This is potentially also supported by the fact that, speeding tickets notwithstanding, no other US president (former or sitting) has ever been charged for anything before. The fact that US institutions chose to break such a long-standing norm at this particular moment seems a bit too much of a coincidence to believe it was done with honest motivations.

Assuming all of the above is true, are there any limiting principles? Until something happens for the first time, it remains by definition "unprecedented", so if your rule is based solely on precedence then nothing would ever be allowed to happen unless it has already happened before which doesn't seem workable. Another consideration also is just because something hasn't happened for a very a long time, it doesn't mean it accidentally created an inviolable precedent that can never be broken now. For example, the crime of piracy is one of the few specifically mentioned in the Constitution and it used to be regularly prosecuted way back in the day but there was a very long lull before the feds dusted it off to go after some Somalis.

I don't think anyone would agree that a permanent bar was created, because that would bestow elected officials and political candidates the extra benefit of potentially perpetual & absolute immunity from all criminal liability, including for conduct that happens after they leave office. In its most absurd implementation, this hypothetical system would allow any criminal a "get out of jail" card just by declaring election candidacy.

So if the longstanding norm against prosecution can indeed be broken, then under which circumstances? For Trump's supporters, I suppose one possible answer is that he has been the target of such a relentless and unprecedented avalanche of (presumably bad faith) lawfare — Russiagate, impeachments, etc. — that trust in the system has been depleted to the point that all action against him should be assumed to be ill-disguised political retaliation as a rule. Assuming that's true, then what? Should the rule be that other politicians can be prosecuted but that Trump should have a carve-out in consideration of the unusually aggressive persecution he had to endure? If so, how serious of a crime would this cover? How long should this immunity last for? Should everyone who faces relentless persecution be afforded similar benefits?

I think charging a candidate for public office (excepting very very serious crimes) is one of those holy shit don’t do that things for me that I think the should be a very high bar for doing that. It shouldn’t be just missing documents, but they’d better be very important documents and he better be trying to sell them or something equally bad. The reason I say this is that the graveyard of Republican governments is full of the bones of countries that started doing exactly this. In fact, prosecuting and law faring the opposition is very nearly a hallmark of a failed democracy.

I think he very well could have had classified information. I just think that if those aren’t very important secrets to keep, that this isn’t really the reason to go after him. And one thing I’d point out as evidence that these aren’t important secrets is that the government waited nearly a year to bother searching for them. If these were nuclear secrets, military readiness documents, invasion plans for our enemy states, lists of agents or anything of that sort the idea of waiting nearly a year and alerting Trump that he had something that valuable (which he could sell or give out) seems ludicrously incompetent. If the CIA believes I have the GPS coordinates of a nuclear silo, it’s only a matter of hours before I’m detained and my house ransacked and every electronic device I own confiscated. They aren’t going to ask my lawyers nicely no matter who I am.

The other explanation for why they took so long to get the documents back is precisely because they wanted to proceed as gingerly as possible. They escalated only after the year-long tactic of "please please please give back the documents" didn't work.

I assumed the issue away for purpose of this post, but I would love to see someone try and defend Trump's obstructionary maneuvering here.

But it still doesn’t seem to make sense as a logical whole. If the documents are such that revealing them to outsiders is a national security matter, then no matter who holds them, it’s absolutely essential that they get them back as quickly as possible. If the documents were such that the government was absolutely okay with almost a whole year of not knowing whether they were being exposed to the wrong sorts of people (also NB: they knew the Russians were gearing up for an invasion, and suspected Trump had some ties to the Kremlin), these things could not have been the kinds of secrets that the government and democrats want the public to think they are. If some secrets get out — technical specs for weapons, a report on nuclear weapons, secret agents, military readiness and training — it could well be an existential threat. Even if the government wants to proceed “gently”, it would still be quite unwilling to leave them unsecured just to run everything by lawyers and through lawyers.

What seems to exist here is a form of Motte and Bailey. When the opponents of Trump want this to be a big deal they try to imply that these documents were very important state secrets. When they’re trying to get them, they’re acting like they don’t think they’re important enough to be worried about, and are perfectly content to disclose to Trump through lawyers that these are super important documents and “pretty please with sugar and a cherry on top can we get them back,” with no date attached.

I'm not seeing what's illogical. If they moved too quickly or too aggressively, that would've garnered understandable outrage. But it's also true that they severely undercut their claims of emergency by taking so long. Given those constraints there was no obvious right and wrong decision, they were going to face flak no matter what.

I mean yes they’d garner outrage, but if these documents were indeed of national security importance, it seems like they’d be much better to take the blowback and keep national security from the risk that while you’re quietly asking pretty please give us the secrets (which is in itself reckless as if he didn’t understand the importance of the documents, you just told him) giving him ample time to hide, destroy, copy, or sell these things before they can be taken and secured.

There's also a big range of actions that can be taken between 'ask nicely' and prosecution. A good middle ground could be do the raid and then not take things further after retrieval.

Two things can be true at once:

  1. Democrats, Establishment media and the USG bureaucracy hate Trump. They have put a lot of thin gruel in front of the public for 7 years, with 3 years of breathless Russiagate coverage and a sham impeachement over Ukraine. Conservatives rightly became desensitized about the boy who cried wolf.

  2. Trump legitimately does reckless things in pursuit of his ego.

As someone who resented the media/natsec agencies for (1), I really don't see how anyone can defend what Trump did with the documents scandal. He is literally on tape talking about sensitive national security documents with a journalist while admitting it's not declassified. As much as the establishment is after him, I think no former President would have gotten away with taking natsec related documents and then refusing to turn them over.

I agree, his inexplicable refusal to return the documents and the comically inept ways he tried to hoodwink his own lawyers are the only distinction anyone really needs.

Are there any similarities between Trump's arrest and the arrest of Russian opposition leader Alexei Navalny?

Has Trump done dumb shit? Yes.

But if this is the precedent, then the second that Biden's term of office is over, the feds should be knocking on his door about the boxes of papers in the garage, etc. What's sauce for the goose is sauce for the gander.

It's already been done. Biden and Pence both initiated their own searches for classified documents. Presumably they wanted to make sure their hands were clean after seeing the way Trump stonewalled the NARA request / subpoena / FBI searches. Both Biden and Pence found documents. They both contacted the feds and asked them to please come get the docs. There are no search warrants for Biden or Pence because both willingly allowed the government to come in and search. No warrant is required for a search where consent is given.

I have no idea who Pence or Biden may have exposed their documents to while they were sitting in their garages. So maybe indict them any way well after the fact.

If pandora's box gets opened, I want to see every democrat politician who has so much as set foot in a red state get the book thrown at them. Even if it's just for speeding, jaywalking, or littering, I want the enemy to go to jail. The feds will always be on team blue but New York state is in on this too, so red states should play ball too. He's small fry but I'm sure a determined prosecutor could put someone like Beto in jail for a long time on some bs charges.

So maybe the limiting principle should be, don't start some sort of tit for tat spiral that ends up as a constitutional crisis.

I agree. Equal treatment under the law for everyone. If a politician or other powerful person breaks the law, they should be prosecuted just the same as you or I would be. And punished to the same degree as anyone else. For speeding, jaywalking or littering -- the examples you cite -- that means they get to pay a ticket, not be locked up in jail. And both cops and prosecutors regularly overlook that sort of conduct because it's just not damaging enough to be worth going after.

What you seem to be suggesting is that politicians of an opposition party should be subject to a more draconian enforcement and punishment, because you dislike their political stance. That's not equal justice under law.

It’s much easier for Democratic politicians to never visit flyover country than it is for Republicans never to visit New York or California. This isn’t a good strategy.

It’s much easier for Democratic politicians to never visit flyover country

Well, San Francisco had to walk back the virtue signalling on that one because it was hurting them more than the knuckle-dragger states.

San Francisco is repealing a ban on city-funded travel to 30 states that it says restrict abortion, voting and LGBTQ rights after determining the boycott is doing more harm than good.

The Board of Supervisors voted 7-4 on Tuesday to repeal a section of the city's administrative code that prohibits staff from visiting and city departments from contracting with companies headquartered in the states, which include Texas, Florida and Ohio.

California, meanwhile, is considering the repeal of a similar law.

...The progressive city passed the boycott in 2016, after the U.S. Supreme Court legalized same-sex marriage nationwide. At first, the boycott applied only to states that it considered restricted the rights of LGBTQ people. Later, the list was expanded to include states that limit access to voting and abortion.

The idea was to exert economic pressure on those conservative states. Instead, a report released last month by the city administrator concluded that the policy was raising costs and administrative burdens for the city. Because of restrictions, there were fewer bidders for city work and that ending the boycott might reduce contracting costs by 20% annually, the report concluded.

In addition, the city had approved hundreds of exemptions and waivers for some $800 million worth of contracts, the report said.

Meanwhile, "no states with restrictive LGBTQ rights, voting rights, or abortion policies have cited the city's travel and contract bans as motivation for reforming their law," the review concluded.

"Oh gee, the zanies from SF won't come to our state on local government-funded scolding missions? Oh gosh however will we cope?" 😁

Banning your own people from going somewhere else indicates precisely the opposite approach to arresting the other guys when they try coming to visit you?

Sort reminds me of the California exit tax that was proposed. But I'm all for them enacting things that make them look foolish.

So if the longstanding norm against prosecution can indeed be broken, then under which circumstances?

The answer, quite obviously, is that if the Biden DOJ wanted to signal it was serious about document abuse and not just serious about getting Trump, is they would have combed through all the previous administrations (probably starting with Bush II). Start by nailing someone like Bolton, Condi Rice, etc. Move onto Obama admin bad actors. Clapper and Brennen strike me as particularly arrogant so a raid on them would probably get you 1 of 2. The culmination of going after Obama staffers crescendos with the obvious indictment of Hillary Clinton. Then you go back to some workmanlike prosecutions of Trump staffers (hey maybe a double tap on Bolton) and then the pot o gold at the end of the rainbow is Trump.

That is how a serious person would go about breaking the norm.

When have our current political actors displayed this level of forward-thinking and political gamesmanship? Till I see evidence that they're capable of it, I'm believing that the monster won't swallow its own. I'd expect it from a Stalin or a Mao. Not whatever we have now.

Unfortunately, I think we can both agree that we are not talking about serious people.

This. Get them all, or get none. But above all else, the law should be consistent and predictable.

We'd have to dive deeper but SOL usually start from some action point. Sometimes that is the government's discovery of the crime. And a crime like mishandling documents is essentially ongoing until it is cured.

More importantly, the statute is short for a reason. It’s not a healthy democratic activity to perpetually start jail hunts for defeated politicians.

Hillary wasn’t jail-punished, but she was election-punished. She lost it in large part because she couldn’t shake the liar-insincere (plus “rules don’t apply to me”) label she picked up primarily because of the email saga and her changing answers.

The whole point of this saga is that Trump had an easy way to avoid all of this. Give back all the damn documents! He does this, there’s no case. It’s also presumably what every other former president does when asked to do something like that.

You could retroactively change the statute of limitations for political purposes, like New York did to get Trump in his sexual assault case.

Ongoing possession will extend the SoLs for every crime that I can think of, so it should apply to gov document type stuff like what is happening with Trump.

Yeah, that's what I meant. As in, possessing something for 5.1 years doesn't mean you get away with it. Possessing it 5.1 years ago, then stopping at 5.01 years ago, means you get away with it. But with that, I'd assume all politicians would have returned the docs they kept, after making a few copies and burying them somewhere safe. Not sure wtf Trump was thinking, since it's ridiculously easy to get away with making digital copies and hiding them where no one could ever find them.

In support of this argument, you could cite the fact that the apparent mishandling of government records occurs fairly regularly by similarly-positioned politicians (Clinton, Biden, Pence, etc.) and yet its enforcement appears to be selectively doled out.

I happen to think that indicting potential candidates creates a slippery slope unless the charges are very serious, and that these particular charges do not seem to clear that bar (though I suppose it might depend on the contents of the specific documents in question).

That being said, the selective enforcement argument does not seem to be very persuasive, because there are are at least two elements to a violation of 18 USC sec 793(e): 1) unauthorized possession of national security documents; and 2) willful retention or the documents and failure deliver it to the officer or employee of the United States entitled to receive it. There is evidence that Trump, unlike the others you mention, willfully retained the documents and failed to deliver them when the government requested them. Hence, while there is evidence that Trump violated 18 USC sec 793(e), there is no evidence that the others violated the law.

Moreover, when James Comey declined to recommend the prosecution of Hillary Clinton, he said:

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

Again, there is evidence of several of those criteria re Trump (indeed, he is charged with obstruction of justice), but not re the others.

Hence, if the decisions were completely objective, the pattern of decisions would look the same. Hence, the pattern you identify is not evidence of subjective prosecution.

That being said, the selective enforcement argument does not seem to be very persuasive

I should've made it more obvious that I don't find the selective prosecution arguments at all persuasive (Trump's case can be entirely distinguished with his inexplicable refusal to return the documents and the comically inept manner he tried to hide stuff from his own lawyers). I was trying to steelman the argument and assumed it was true in order to discuss the other question.

Correct. Clinton clearly set up her server to evade FOIA and got kid gloves treatment from the FBI. But she at least played along with the investigation a little bit and could feign some ignorance. Trump was brazenly defiant and they literally have a recording of him breaking the law. All he had to be was 10% less stupid but he couldn't pull that off.

Correct. Clinton clearly set up her server to evade FOIA and got kid gloves treatment from the FBI. But she at least played along with the investigation a little bit and could feign some ignorance.

She had her staffers destroy an unknown but likely very large amount of evidence. That is not "playing along with the investigation", and the reason we don't know it for a certainty on the record is because the FBI helped her cover it up.

I understand that what Trump did was very, very stupid. I maintain that the stupidity or intelligence of the politicians in question is not the dispositive factor here.

You're not going to see me defend Clinton's server, clearly it was wiped to preclude any further evidence gathering. The FBI should have simply seized the server, not asked her politely to hand over hand-picked "relevant" emails and then allow her to erase it. But she complied with that very lax standard. Also her apparent motive (FOIA noncompliance, mixing government work with business) is worse than Trump's, which is purely his ego.

If Trump had complied by handing over the physical documents when asked, I doubt he would have been prosecuted. His defiance and his stupidity are major factors here, he admits to committing a crime on tape, which makes it so easy to prove in court.

efforts to obstruct justice. We do not see those things here.

You don't think the famous what, with a cloth? wasn't an attempt to obstruct justice?

And I don't know how to describe the FBI finding work-related emails for Huma Abedin on the laptop they seized because her scumbag husband had used it to sext a minor and they were investigating this. That's a bit more careless than I'd like.

To provide a further excellent piece of evidence, let’s ask Bill Barr, former Attorney General FOR TRUMP, who has decried other efforts as “witch hunts”.

Source

In differentiating this investigation from others that examined Trump’s conduct, Barr said he had defended Trump in the past — including in response to Alvin Bragg’s recent indictment in New York — but this case is different.

“This idea of presenting Trump as a victim here, a victim of a witch hunt, is ridiculous,” Barr said.

“Yes, he’s been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. I have been at his side defending against them when he is a victim. But this is much different. He is not a victim here. He was totally wrong that he had the right to have those documents. Those documents are among the most sensitive secrets the country has.”

I think that’s pretty telling that Barr also claims Trump is doing unprecedented and serious things. This is not some partisan hack. It is someone republicans trusted to run the entire Justice department. And he agrees with the charges!

Where did he say unprecedented? He said he was wrong here. Whatever you quoted doesn’t match your take.

He said Trump was wrong. He also said and I quote from earlier in the article, “almost anyone else in the country would have returned the documents if asked”.

Sure the word unprecedented doesn’t specifically appear. But in terms of Trump scandals, from media hype to legitimate offenses, it’s clear Barr is saying that this particular scandal is far worse than any other that he witnessed. That’s along the same lines (no cross party comparison is directly made however).

So it doesn’t say what you said and the obvious rejoinder is Hillary. I’m sure Barr is aware of that example so citing him for something he didn’t say isn’t appropriate.

I think you’re being pedantic and uncharitable. It is unprecedented for Trump himself to be in the wrong, per Barr. But that’s a hang up that you’re focusing on while missing the point, which is that Hillary or anyone else is an irrelevant distraction. The substance is: the fact that Barr calls this lawsuit out as different than past (alleged) “phony claims” is pretty telling. We should therefore be paying close attention to the indictment and resist the urge to write it off as yet another exercise in partisan hackery/deep state persecution. Because here we have an ardent Trump defender and an unquestionably experienced legal leader admitting Trump is in the wrong. Isn’t that enough to take it seriously? It should be viewed more or less on par with Jan 6th, or more seriously, because the wagons that you’d expect to circle aren’t actually circling.

No. Most people seem to think “Trump legally is in a bad spot.” The issue many have is unequal treatment of the law. That is Democrats get treatment A; Republicans (or Trump) gets treatment B. Saying “it is unprecedented” is a comparison to others; not to Trump himself.

And yes, unequal treatment is a huge problem.

On the contrary, the statement being vetted by so many people and subject to so much scrutiny implies it’s a very solid and defensible statement…

Do you honestly believe that is an argument that will convince anyone?

We know the Obama WH and the DOJ/FBI were absurdly pro Clinton and either looked the other way / supported the Clinton campaign. See Durham.

But now you believe…that having more of them involved in the Clinton statements proves it’s objectivity instead of the opposite? You honestly believe that?

You asked about the Comey statement specifically. It was an independent investigation. And by all accounts Comey agonized about which phrasing to use and the conclusions and knew that whatever he said would be gone over with a fine toothed comb by the media as well as politicians alike. He knew that it was in some sense a no win situation for the FBI’s reputation, but the exact phrasing needed to be as defensible as possible to protect said reputation.

So yes, I think it’s very fair to say that every phrase was closely and carefully chosen to be accurate yes but also legally sound. That’s what the “sanitizing and proofing” is designed to do — not that anyone in the White House had much control over the contents!

Have you read the Durham report? The conclusion whether or not to charge shouldn’t be viewed as necessarily legally accurate.

What triggers my spidey sense is that two key pieces of evidence in the case are:

  1. An "off the record" audio clip of Trump showing a secret document to a reporter and admitting that it is still classified.

  2. Testimony from Trump's lawyer that they had to pierce attorney-client privilege to get.

Now sure, Trump was dumb to have other people in the room during the interview, so maybe the journalist got a specific subpoena to turn over the recording, but the way some journalists talk about it, you'd think "off the record" information is treated the same way The Vatican treats the seal of the confessional. Also, I'm pretty sure anyone who has a lawyer on retainer at the time they commit a white-collar crime uses the legal advice they receive "for the purpose of committing a crime." Was Hillary's lawyer forced to testify?

The law on Reporter's Privilege is inconsistent, and it's weakest when it comes to criminal investigations. Some journalists vow to fight any subpoena they receive for their secret records, but not every subpoena is going to be worth the headache and legal jeopardy.

As I understand it, if a modern journalist tells you that something you want to say is "off the record", all they mean is that they won't be visibly recording what you say, but it can well turn up in the news piece they write about you:

The common belief among many is that when a source tells a reporter something “off the record” that means the reporter cannot or should not publicly share that information. But that’s not exactly how it works. Just because a source says something is “off the record” does not mean it truly is “off the record.”

Here’s how it should work. A source should ask a reporter first if something can be off the record. Then the reporter can agree or refuse. The source then can decide whether or not they want to share that information.

If the reporter agrees to an off-the-record request, the ethical thing to do is not report or even repeat that information. Off-the-record comments are supposed to remain strictly between the source and the reporter.

...Journalism rules are on his side. He’s right. He didn’t agree to Rubin’s off-the-record request so Rubin cannot claim that Thompson broke a promise to keep her comments private.

So unless the reporter verbally agrees "yes, this is off the record", sorry, loser!

Off the record only has meaning in repeated games between participants. The New York Knicks' head coach can count on "off-the-record" requests being honored by New York sports beat reporters, because if they screw him he will stop talking to them, he will instruct his assistant coaches to stop talking to them, he will instruct his players to stop talking to them. While if they respect the request, the coach will be more likely to open up to them in the future, will use them to get stories out without his fingerprints, etc. The reporters don't refrain out of a sense of honor, merely out of a sense of self-preservation.

The same beat reporter won't respect my off the record request, because I have nothing to offer him, in reward or in retaliation.

avalanche of (presumably bad faith) lawfare — Russiagate

I don't know if the Durham report was even covered that much on the motte. I would've thought it was pretty big news - as far as I can tell it's conclusive proof that the entire Russiagate meme was made up by US security forces. I remember heated, highly technical arguments about alleged payments and so on back on the old site, about whether Russiagate was real or not. And hey, the US missed an opportunity to improve relations with Russia back in the Trump presidency, primarily due to Russiagate making it hard for Trump and Putin to work together. This does seem somewhat important given there's now a huge proxy war in Europe. Could this have been avoided were it not for Russiagate?

Bipartisan support for the charges. So prosecuting Nixon would’ve been appropriate.

It goes a good bit further than enforcement appearing to be selective, it is demonstrably selective. Simple fact of the matter now that we have the Indictment, we can compare it to the Comey report from 2016 and what becomes readily apparent is that Clinton was allowed off the hook for what were substantially more egregious violations than anything Trump has been accused of. It's a pity pushshift is currently down as I'd like to link the thread where I did a detailed breakdown of the report when it was first released and compared Clinton's case to Petraeus' but six years is a lot of posts to scroll through.

In any case, I see this as the equivalent of Faucci declaring Racism "a public health crisis" so that he could endorse BLM protests while continuing to condemn anti-lockdown protests as super-spreader events.

It lays bare the lie that they are not acting politically.

It lays bare the lie that they are not acting politically.

You would think so, but all they have to do is continue saying they're not, pointing to (usually irrelevant) distinctions, yell about how horrible Trump's behavior was, and pretty much everyone will believe either

  1. Yes, Trump was much more egregious than all the rest or

  2. Well, they ignored all those others but Trump did wrong so it's OK to prosecute him.

It shouldn't work, but it does.

Sure, the basic version goes something like this...

Per the FBI's report 8 of the recovered email chains contained material that had originated outside the State Department and had been marked Top Secret at the time of sending. The origins are important because originating outside the state department means that Clinton was not the classifying authority and thus could not legally copy or distribute said material without consulting the classifying authority. IE her counterparts in the Department of Defence, Department of Energy, etc..

Of those 8, 7 contained material that had been marked Special Access, and 3 for compartmentalization. For those of us who have actually held a security clearance this here is the real galling bit. Plenty of material gets classified Secret or Top Secret while remaining effectively public to anyone with the appropriate clearance. Something that gets marked "Special Access" aka as being "Codeworded" means that this is not something that goes into the secure documents room where any schmuck with a security clearance can look at it. This is something that we seriously want to limit access to and should be considered strictly need-to-know. For the record, this is the level of access that the infamous "nuclear codes" reside at. Compartmentalization goes a step above that. Stuff that gets explicitly marked for compartmentalization is not supposed to leave it's designated compartment. It's the "Gentlemen, nothing we are about to discuss here can leave this room." type shit that shows up in political thrillers. It is the true name of our agent in the kremlin, the mathematical algorithms used to generate and authenticate the nuclear codes, and the detailed schematics of the crashed UFO in Area 51, that sort of thing. If you have Compartmentalized information that someone else needs to know you do not put it in a fucking email. You either call that person and speak to them directly on a secured line, or you put it on a piece of paper. put that paper in an appropriately marked envelope, and have an armed courier hand deliver it to the individual in question. The old "handcuffed briefcase" trope may or may not make an appearance. I've worked with Special Access and Compartmentalized information a few times over the course of my career and it's always a PITA. It's the kind of thing where you have to hand your cellphone, watch, and any other electronics you might have on your person to a security guard by the door before entering a room that is also a faraday cage before you can discuss the topic of the meeting.

Furthermore, these emails were found unencrypted on the laptop of a third party who did not have a security clearance, thus demonstrating beyond any doubt that an unauthorized disclosure did occur.

Finally, there's the apparent destruction of evidence. Clinton, or someone on her staff attempted to conceal the unauthorized disclosure by wiping the files, and any record of them being sent from the host side. We only know about these files because they were recovered from the receiving computer. This also implies that there may be other unauthorized disclosures by Clinton and her staff that were not discovered because the receiver was never found.

In contrast Trump is accused of illegally retaining classified material for which he was the classifying authority and possibly disclosing it to a 3rd party but as it stands hard evidence of that disclosure has yet to be presented, all we got is Trump saying that he would.

TLDR

There is no way for TSC/Compartmentalized material to show up on someone personal computer or email server without someone violating the espionage act.

Likewise, there is no way for it to be sent to a third party over the internet without someone violating the espionage act.

Someone trying to conceal the above implies that they had knowledge that they were acting illegally.

I too believe Clinton's conduct was abysmal and would've been thrilled to have seen a prosecution on the very obviously sketchy private server affair but Trump's absurdly hilarious comically ham-fisted obstruction attempts are the only aspect you need to draw a distinction.

As you said, we don't know if it was someone on Clinton's staff who did the wiping, and it would have been very difficult to prove in court.

We... do know, or at least the FBI does (the specific names were blocked out in FOIAs). The Benghazi Committee's first request for all relevant Clinton e-mails was sent November 18, 2014. In December 2014, Clinton Chief of Staff Cheryl Mills asked Platte River Networks to delete all e-mail information older than 60 days. This policy change was not implemented at this time. The Benghazi Committee sent out preservation requests to Clinton and to Platte River Networks on March 4th, 2015. Sometime between March 25th and the 31st, 2015, a Platte River employee used BleachBit to overwrite all Clinton e-mails, and that employee knew of the preservation request and that it covered this company and these files.

Platte River would also go out of its way to resist complying with or even recognizing a congressional subpeona.

Which doesn't necessarily say anything for Clinton herself, and maybe not even Mills. Well, Mills' original order was still violating the Federal Records Act, and the initial November 18 request is the sort of thing that traditionally is considered a preservation request, and the whole thing made Clinton's claims that she'd provided all relevant e-mails to the committee a farce.

But that Platte River Networks employee was never charged, or even seriously investigated. So it seems less found "very difficult" and more just untried.

There's the additional wrinkle that the entire point of the "private" server was almost certainly to evade FOIA and transparency/accountability. There's a long history of Federal bureaucrats using "private" equipment for their documenting and record-keeping; if they need the records they can treat them as official, but if they get FOIA'd they claim they've searched "official" records and found nothing, and if caught use the fig-leaf that the devices were "personal". One of the big times this came up is in Waco, where the overwhelming majority of documentation of the raid by ATF and the FBI was concealed from numerous investigations and lawsuits for many years by exactly this method.

It's obvious to me that Blues see all these arguments as scrambling attempts to insulate Trump, but I honestly don't care if he goes to jail. The point is that federal law enforcement is completely off the chain, and has been for years, maybe decades, maybe always. Hoover was never held accountable for his crimes and corruption, and he built the Bureau that we've inherited. They've been involved in serious malfeasance in every era from their inception till now. At some point we need to engage with the reality that the FBI has never abided the restraint of law.

You keep saying this. Evidence was destroyed but your argument is “well we can’t prove how so can’t do anything.” You put pressure on lower level people. You don’t give the immunity to start. You then either get them to flip for a deal or take the fall. That’s the opposite of what happened here because the investigators didn’t want to negatively conclude.

Could you specify where in the FBI reports they discuss this. Your link goes to a list of forty multi-page PDF's.

I think this is the part of Comey's statement where he discusses the issue

For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters.

He says 'concern matters' rather than 'contain materials' which seems to imply a discussion of something classified Special Access rather than the transmission of the special access materials themselves.

Can you articulate the harm Trump caused?

You made a claim and then said “it is reasonable to conclude” based on your belief that certain things were compromised.

With Clinton, we know foreign powers accessed the information. https://www.foxnews.com/politics/foreign-actors-accessed-hillary-clinton-emails-documents-show

Yet you said as seemingly a matter of fact that Trump did it worse (citing exposing the info to unnamed people who based on other reported info was biographers).

It seems you are making jumps where none are warranted now. Maybe it will but that isn’t being objective now.

Of course the exact same is true for Clinton. Or for Biden. That doesn’t mean there is actual harm.

More comments

I think the answer is ‘if you’re going after trump, maybe you should go after one of the dozen odd similarly ranking officials who has also done this same thing, instead of just the main general election opponent for the sitting president who both has a 38% approval rating and who is one of those dozen’.

In general I don’t think democrats should be prosecuting republicans for this kind of thing, and Vice versa(that is, things politicians do all the time and usually don’t get prosecuted for). But I suppose bipartisan investment in good governance is too much to ask.

I think the answer is ‘if you’re going after trump, maybe you should go after one of the dozen odd similarly ranking officials who has also done this same thing, instead of just the main general election opponent for the sitting president who both has a 38% approval rating and who is one of those dozen’.

Basically this.

If the FBI wants to avoid the appearance of this being a political hit job they might want to indict a few high-ranking democrats while they're at it. But as it stands the FBI only seems to seriously pursue these cases to when the individual in question happens to be a GOP front-runner (Powell, Petraeus, and now Trump) and the normies are starting to notice.

Colin Powell was investigated by the FBI ?

Yes, 20 years ago now, but ultimately let off because the rules as written at the time hadn't really caught up with the existence of the internet yet. Powell's acquittal was routinely cited by Clinton defenders as evidence that she was being unfairly investigated.

the normies are starting to notice.

The normies are busy telling each other "Did you see that Trump gave classified documents to Kid Rock? I hope they put that orange freak in jail for a hundred years!"

Isn't Kid Rock the guy that shot up the case of Bud Light? Seems like there might be a few normies would think this classified documents thing just makes him (and Trump) extra cool 😁

Is it true, or is it just bait for liberals that he did this?

At the risk of eating another ban, I will continue to assert that your self-selected bubble of progressive Manhattanites is not representative of the wider nation. See my previous link.

I live in the suburbs. I even know some Republicans. The Republicans are convinced by the law-and-order arguments (they don't care that the other party has done worse, they've got PRINCIPLES), the Democrats believe anything they hear on CNN.

That means for example, you can give a governor tons of cash in a briefcase to get his favor generally and have him lobby other state officials on your behalf, as long as you don't specifically have him sign something for you using gubernatorial powers.

You want to be careful with this though. It is a fact that you can not get elected to any position of significance without having a large network of supporters and, to be blunt, donors. And pretending these people would support you because they like your haircut and your honesty is both delusional and, frankly, defeats the whole point of democracy, where people elect representatives to enact policies they'd like enacted. Criminalizing this means either pushing it to the underground, or exposing any candidate to constant threat of prosecution - which inevitably will be wielded as the weapon of influence and intimidation. Living in an environment where public officials are constantly investigated is not healthy for the society too - it promotes a cynical outlook that everybody is corrupt anyway, and the prosecution is based on who has the power. And that outlook may also be completely correct.

Third, you need to massively beef up disclosure laws.

And thus, open people - especially small and medium-size donors that don't have FU money - to the threat of intimidation and cancellation. Donated to a wrong politician/cause? You are fired. Supported a group which supported a group which stood next to a group which once had a member who is now unperson? Congratulations, you are now unemployable and a social pariah. This makes the whole politics insanely toxic, because you can't just support some cause anymore - you have to wage the war of elimination against the opposition, otherwise they would eliminate you.

massively increase the salaries of the most senior government officials

How massively you're talking about? So massive that any crime committed while seeking the post is worth it, because the prize is worth the risk? If you observe billionaires, you see many of them working tirelessly at increasing their wealth, and their influence, and some of them are not above corruption to facilitate that. Obviously, making each government official a billionaire is not enough. How much would be enough - trillions? Quintillions?

To supplement all this, I'd make a fourth proposal that's just hugely unpopular: massively increase the salaries of the most senior government officials. Right now, being a Member of Congress or a cabinet Secretary pays very little as compared to the other career options the typical officeholder has. If we're going to put the screws on corruption, and make it both a difficult and dangerous job to have in terms of criminal exposure, we should relieve the money pressure on the other side, and make it so that it is easy to live an upper-class lifestyle on the salary alone.

I've seen this offered from time to time, but I don't think it will work. They still have incredible power, and the power is worth buying if you are in the space. US senators make $174k. If we tripled that and more and made it $600k, that still wouldn't get you anywhere close to making up for Hunter Biden's Burisma contract + his Chinese dealings (and thats just the money we 100% know about). That wouldn't get you to Mitch McConnell's stock portfolio being like $30 million up on the S&P 500 over his tenure. All you'd end up getting is a little extra inflation in the DC housing market.

I actually don’t disagree with your fourth suggestion. I would pay government officials a lot more while at the same time have things like term limits and limitations on going back into the private sector.

Ted Stevens is an awkward example, because there's a lot of pretty good evidence that he didn't do it: the prosecution's case depended on the claim a contractor was underbilling him, and that contractor said in an interview with the FBI (concealed from the defense) that work was worth at most a third of the government's estimate, that the whole house wasn't worth the government's estimate, and that the contractor had refused to send bills to Stevens when Stevens had asked, while prosecutors either stood by without correcting or suborned perjury.

My point isn't that the prosecutors were Bad People, though I think they were. My bigger objection is that Stevens quite probably was innocent, and more likely than not well in compliance with the spirit of the law, rather than skirting on the edges. Even presuming that the appropriate level of prosecutor misconduct or prosecution of a marginal case isn't zero, it seems like there's a lot more low-hanging fruit than one where suborned perjury resulted in an innocent man being found guilty.

I think Gillum and McDonnell cases are lower-hanging fruit from a rhetorical perspective, in that it's pretty clear that they did the things, that the behavior was intended to fall in the bounds of the law, and it's mostly a matter of whether they had sufficient cutouts (for Gillum) or where the law was written specifically enough to cover the bad behavior (McDonnell). BridgeGate is more difficult, since the behavior by Kelly and Baroni were definitely Bad Things, and they should be illegal, but the wire fraud statute was a really stupid approach to try and go after them.

There's a lot of stuff like this, and it's far broader (and often worse!) than mere corruption.

I just don't think, given the available evidence, that Stevens was in that set. The law clearly prohibited what he was alleged to have done -- there's a reason he and the Bridge to Nowhere were a staple reference from the (GOP-leaning!) Porkbusters set until the second shoe dropped -- it's just that the government had very strong reasons to believe that he didn't do those things.

If we're talking anti-corruption reform one that probably won't happen but would be a good idea would be a guarantee that any politician removed for corruption reasons is replaced by a member of the same party. Make it a vote of their co-partisans from their home state legislature or something but the key would be removing the incentive to cover up a co-partisans corruption to keep a majority. That wouldn't help when it's a big time figurehead like Trump but it would help get rid of embarrassments like George Santos.

To be clear, my sincere position of policy is ‘we should have parliamentary immunity equivalence for these sorts of things’. I just think ‘prosecute everyone who does it’ is slightly better than ‘only prosecute trump’.

Sure. We should write in by statute that current and former federal elected officials, Supreme Court justices, and cabinet level officials cannot be prosecuted for procedural crimes without previously being removed from office successfully through impeachment.

I personally would be in favor of far less apprehension with prosecuting government officials. If we assume that Clinton, Biden, etc. all get prosecuted for mishandling records with a similar zeal, how much of an effect would it have in mollifying those that believe Trump is the victim of unwarranted legal action?

It would (mostly) dispel me of the idea that Trump is being treated unfairly by the legal system, but I don't think that would be good policy. Anyone in charge of large amounts of money, important records, or other sensitive material almost certainly commits multiple felonies over their career. There's just no way to be effective at your job while following all of the rules all of the time, and some of the federal fraud statutes are very broad.

I think that's the end result of what's happening now -- if someone isn't willing to indict Biden (and/or Newsom, and whatever) in the next six years, grassroots Republicans will find someone nutty enough to do so, whether or not the law supports that particular matter. It's possible that this turns out to be a sword that doesn't cut both ways, but if so, they're going to go up a rung and chop out sections of the FBI or DoJ until it happens. There's ways you can separate each and every other big-wig politician or politically-connected actor who violated the law and got off scot free, but there's few ways to do so and not seem post-hoc justifications -- and it's far too dangerous a tool to be only available to one team.

And I think that would mollify conservatives, if not necessarily as many Trumpists.

Of course, the flip side is that it'd be extraordinarily bad on its own merits. Even the steelman of 'just' going after 'genuine' cases will result in federal officials facing a barrage of 1983 suits, but conservatives have fifteen or twenty years of genuine or imagined overlooked misbehavior to bring forward.

Is Newsom corrupt? Beyond the usual run of Californian politics, I mean. I was less than gruntled by the description of Ivy Getty's fairy tale wedding, where all the Democrat big names in California were pretty much at the beck and call of the Gettys - there's a thin line between "attending as friend of the family" and "performing favours for the grandees who bankrolled my political career".

He's grandstanding about DeSantis and Florida, but that's par for the course. He avoided the recall due to having the party swing in behind him and campaign on his behalf, but is there any gossip about him being a naughty boy? Apart from the 'dining during Covid' stuff which politicians everywhere were doing (including in my own country).

I don't know that he's (unusually) corrupt, and I doubt most political corruption goes from blue states into deep red ones.

I just don't think corruption is the only or even most available avenue for political indictments. Make a false statement during online fundraising? (State) wire fraud statutes could be written expansively enough to cover anything close to them. Harass a business in another state? Many states, especially southern states, have laws against deprivation and attempted deprivation of right under color of law; these are mostly civil for now, but that's mostly so they're available for private rights of action (and for lower standards of proof) rather than some deep requirement. There's some 11th Amendment complexities, here, but they largely reflect needing to pursue state officials as individuals rather than states themselves -- but if your intent is to harass rather than to get an injunction, that's kinda besides the point.

This isn't something states do, right now; there's a reason that all the handwringing about DeSantis kidnapping charges didn't have people bringing up a potential constitutional crisis. And there's very good reasons that they don't! But it's a weapon on the table.

in the next six years, grassroots Republicans will find someone nutty enough to do so

And how are they going to do that with the Democrats in control of the Deep State and the presidency? This is the endgame; the Democrats aren't worried about tit-for-tat because they don't intend to relinquish power again.

Naively, there's a chance people will recognize the tooling; politics is at least theoretically anti-inductive. To an extent, this is currently one of Trump's biggest selling points, damning with faint praise as that might be. Given past events, I'm not that optimistic.

More pessimistically... there was a case in the late 90s where a federal agent shot an unarmed woman holding a baby. That case was somewhat complicated over past Supremacy Clause questions over where a federal officer's official processes start and where reasonable behavior ends. But states do not have to limit themselves to good, fair, or honest laws, that a federal employee might only violate when taking their duty to its most extreme edges.

States just don't do that, and that's why you've not heard much about the few cases that even started. And the feds can put the pressures in; the Clinton-era fed put a lot of pressure to get Lon Horuchi's prosecutor limited as much as possible. It's even possible that federal judges will quickly develop new immunities or theories of impossible requirements of standing. But taking it off the table entirely as a threat requires taking every state, not just the federal gov.

I can't speak for anyone else but seeing Clinton and/or Hunter Biden go to jail would go a good way towards convincing me that the FBI isn't just a bunch of DNC thugs.

I'm honestly not sure that sending Hunter to jail would achieve anything. He's got the connections and the pull to get the Club Fed version rather than "thrown in with the ordinary criminals" and I can't see him learning anything from that, indeed I could see him boasting about how he's done time and is now a bona fide tough guy (because he strikes me as that much of an idiot).

Joe will always protect him. That's family love. How far he's gone to do that, and how much real interference with the law that entailed, we won't know unless someone does go after it, and why would the Democrats just sit back and let that happen?

I'm honestly not sure that sending Hunter to jail would achieve anything.

It would at least provide the implication of consistency and rule of law. I don't blame Biden for defending his kid but I do blame the rest of the Democratic party for trying to gaslight us into believing that this is anything other than what it very obviously is. What I want to see Cimafara, HeelBearClub, GDanning and the rest of the partisan hacks here who were defending Clinton back in 2016 but are now bitching about Trump admit that they were wrong.

If Trump is guilty, Huma Abadien, Andrew McCabe, Hillary Clinton, and John Podesta are even more so what say we clean house?

Look, it seems patently obvious that hunter Biden committed some serious crimes. It seems simply true that Joe was somehow involved in those crimes, at the very least intervening illegally to protect his son, although I don’t think the evidence is strong enough to convict him and furthermore may not be strong enough to indict.

I totally understand why Joe Biden is so willing to protect his son. What I don’t understand is why so many other prominent democrats seem to think it’s so important- after all, Joe is probably not going to get prosecuted.

I think we are in agreement.

I don't think anyone would agree that a permanent bar was created, because that would bestow elected officials and political candidates the extra benefit of potentially perpetual & absolute immunity from all criminal liability, including for conduct that happens after they leave office. In its most absurd implementation, this hypothetical system would allow any criminal a "get out of jail" card just by declaring election candidacy.

this is what the pardon does.

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