Sunday, September 16, 2018

Christine Blasey Ford: No Proof And Less Credibility

After the confirmation hearings by the Senate Judiciary Committee regarding the nomination of Appellate Judge Brett Kavanaugh to the Supreme Court concluded, comes an eleventh hour allegation of sexual assault against Judge Kavanaugh by a woman who claims to have known him in high school, when the assault presumably occurred.

To be sure, the details provided are, at the very least, salacious, and had they been contemporaneous with the event, tantamount to the accusation of crime.

However, they are not contemporaneous.  The assault, if it occurred, was in the early 1980s.  The accuser, Christine Blasey Ford, by her own admission did not mention it to anyone until decades later:
Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.” The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.  
Note that Ms. Ford not only makes no mention of the event until 30 years after the fact, she made no mention of Kavanaugh's name at first, and goes on to challenge the accuracy of the therapist notes she herself provided, presumably to bolster her claims of trauma.

How is this a credible allegation? Where in this sordid tale is there anything that amounts to substance? Where are the provable facts, the evidence, the corroboration of her claims?  There is none.

There are no recitations of events to friends at the time.

There is no police report.

There is no complaint made against Judge Kavanaugh either at his school or anywhere else.

There is no proffered diary entry from Ms. Ford's teenage years.

There is, however, refutation against Ms. Ford's claims.  In her statement, she alleges that a friend of Judge Kavanaugh's, Mark Judge, was present during the assault.  Mark Judge has flatly denied such an event ever took place: 
Reached by email Sunday, Judge declined to comment. In an interview Friday with The Weekly Standard, before Ford’s name was known, he denied that any such incident occurred. “It’s just absolutely nuts. I never saw Brett act that way,” Judge said. He told the New York Times that Kavanaugh was a “brilliant student” who loved sports and was not “into anything crazy or illegal.”
Ms Ford does not accuse Mark Judge of any misconduct.  In fact, she credits Mark Judge with facilitating her escape from the situation:
Ford said she was able to escape when Kavanaugh’s friend and classmate at Georgetown Preparatory School, Mark Judge, jumped on top of them, sending all three tumbling. She said she ran from the room, briefly locked herself in a bathroom and then fled the house. 
Her presumed hero of the moment, in other words, claims the event never happened.

Those defending Ms. Ford and her allegations will no doubt raise the standard rhetorical question, "why would she lie about it?"  Given the severity of the offense, that is a reasonable question.  Amazingly, Ms. Ford herself, and her husband, provide the answer:
In an interview, her husband, Russell Ford, said that in the 2012 sessions, she recounted being trapped in a room with two drunken boys, one of whom pinned her to a bed, molested her and prevented her from screaming. He said he recalled that his wife used Kavanaugh’s last name and voiced concern that Kavanaugh — then a federal judge — might one day be nominated to the Supreme Court.
Several things are remarkable about this statement. 1) the revelation presumably came six years ago, and nothing was mentioned to anyone at the time; 2) Russell Ford recalls his wife using Kavanaugh's last name (but not his full name); and 3) Ms. Ford and her husband were concerned that Judge Kavanaugh might be elevated to the Supreme Court.

Until that nomination happened, Ms. Ford was willing to "let bygones be bygones," and move on with her life. By her own admission, Ms. Ford is making this statement specifically to prevent Judge Kavanaugh from being confirmed as a Supreme Court Justice.

She is not seeking redress, she is not seeking justice, she is seeking merely to hurt Judge Kavanaugh.

Again comes the question: how is this a credible allegation? And again comes the answer:

There are no recitations of events to friends at the time.

There is no police report.

There is no complaint made against Judge Kavanaugh either at his school or anywhere else.

There is no proffered diary entry from Ms. Ford's teenage years.

There is no evidence.

There is no corroboration.

From this answer comes the conclusion: this is no credible allegation.  Not only is the allegation unproven, but the span of time since the alleged events has rendered the allegation unprovable.  It cannot be proven to be true, and it cannot be proven to be false.

Claims which cannot be proven have no place within a court of law. They have no place before the Supreme Court of the United States. They should have no place in the proceedings for confirmation of Supreme Court Justices.

Christine Ford's allegation have no place in the public dialog. Period.

Wednesday, August 22, 2018

More Convictions, More Guilty Pleas, Still No Evidence Against Donald Trump

Last month--July, 2018--I observed that, despite nearly two years of investigation, there was as yet no credible case of wrongdoing to be made against President Trump.

At the time, Paul Manafort's trial had not concluded, and Michael Cohen had not entered any guilty pleas. Now, Paul Manafort has been convicted on 8 counts of tax evasion and bank fraud, and Michael Cohen has pleaded guilty to tax evasion, lying to investigators, and, intriguingly, two counts of campaign finance violations.

Does this mean the "beginning of the end" for President Trump?  On the facts, Trump's demise seems as remote now as it did last month.

Manafort's offenses took place years before he became involved in the Trump campaign--his convictions, while of some comfort no doubt to Mueller, do not advance in any way a case against the President.  They do not bolster claims of "collusion" or of conspiracy, nor do they build a case of obstruction of justice. As big a headline as Manafort's conviction is, in the ongoing effort to unseat Donald Trump his conviction is simply not relevant.

Arguably, Michael Cohen's plea deal does create a legal issue for Donald Trump, but while Cohen is now alleging Donald Trump violated campaign finance laws, the best witness against Michael Cohen is none other than....Michael Cohen.

Previously, prosecutors have alleged that Cohen made payments to two women in order to buy their silence about alleged extramarital affairs with Donald Trump many years ago, and that he was repaid by the Trump campaign through a set of "sham" invoices submitted by Cohen for legal work. Cohen himself recorded a conversation with Donald Trump where they discussed one of the payments.  Yet that recording--quite unlike the recordings that doomed Richard Nixon during Watergate--have shown to have exactly zero traction as proof of malfeasance by Donald Trump.

Further, Michael Cohen has made numerous public statements denying the very thing he is now alleging.  We must therefore ask the question "was he lying then, or is he lying now?" With federal prosecutors threatening him with decades of jail time, the notion that he might, in the vernacular popularized by Alan Dershowitz, "not merely sing, but compose" is not at all unreasonable--a possibility that is strengthened by the fact that one of the offenses to which Cohen has pled guilty is lying to investigators; it is hard to fathom how a witness who is an admitted liar can enjoy much credibility at trial.

Finally, there is the reality of Michael Cohen being a lawyer and Trump's "fixer". As a lawyer, one of Cohen's ethical obligations to his client is to advise him of when a particular course of action is against the law, and to guide him so as to avoid violating the law. The crux of the prosecution's allegations of campaign finance violation is that Cohen was repaid by the Trump Campaign, as opposed to the Trump Organization--which would have not been subject to the same scrutiny regarding campaign finance law.  In other words, it is not the payments themselves that were illegal, but that they were paid out via a political campaign entity and not a private business.

Thus we have the conundrum that if Cohen knew or had reason to believe the campaign paying off the two women was an illegal activity, why did he a) not advise Trump to take a different tack on the matter, or b) bill the Trump Organization or even Donald Trump personally for reimbursement? By the same token, if a member of the bar submitted invoices to the Trump Campaign for reimbursement of expenditures in this fashion, is it unreasonable to impute from those invoices the likelihood that Cohen did not consider the modality of payments to be illegal?  

That Donald Trump largely self-funded his campaign only makes the legal case against him even murkier--ultimately, the argument that Cohen might simply have been repaid from the wrong checking account cannot be dismissed. Impeachment over what amounts to a bookkeeping error is too absurd even for the most rabid of Never Trumpers.

As for the payments and the extramarital affairs, the legal assessment of both, as well as their potential for supporting impeachment, can be summed up as "so what?" For all society's railings against adultery, it is not a crime. Buying silence--especially when the payments were solicited by the women involved, as is the case here--is also not intrinsically criminal.  In neither case did Donald Trump suborn perjury or encourage anyone to make false statements to law enforcement.

Moreover, President Obama received the largest FEC fine in history for improprieties in how his 2008 campaign handled contributions, and no one--not even the most strident of Obama critics--mentioned impeachment over the matter.

As a practical matter, when evidence is murky and unclear, that becomes "reasonable doubt" to a jury. Despite the fulminations and jeremiads against Trump coming on the heels of Cohen's guilty plea, the reality of Cohen's latest statements is that they are murky and unclear, and easily challenged by Cohen's previous testimony (some of which may might have been under oath before Congress, raising the specter of perjury charges). Cohen himself is a damaged witness of dubious credibility.

Unless more damaging material comes to light, either in regards to Cohen's allegations or to any other matter under scrutiny by the Mueller investigation, we still do not have clear evidence of any crime committed by Donald Trump.

Saturday, July 28, 2018

Facts Do Not Matter Where Russia Is Concerned

There is one certain method to send Democrats and the legacy media into major meltdown mode: simply use "Trump" and "Russia" in the same sentence.  The sentence need not even be coherent or logical. The sentence works best if it does not rely on facts, for facts are simply not relevant where Russia is concerned. 

Witness the latest "bombshell scoop" from CNN, where Michael Cohen claimed to have been in the room when Donald Trump and Don, Jr., discussed meeting a Russian national with dirt on Hillary Clinton. Presumably, this now "proves" that Donald Trump is merely a Putin puppet, and all the excoriations heaped upon him by the legacy media are now justified.

What a pity none of that is true.

As has been noted on Gateway Pundit, the lead rebuttal witness against Michael Cohen is--wait for it--Michael Cohen. CNN's recent breathless reporting even makes a passing note of the obvious contradiction:
Cohen privately testified last year to two Congressional committees investigating Russian interference in the 2016 election. A source familiar with Cohen's House testimony said he did not testify that Trump had advance knowledge. Cohen's claims weren't mentioned in separate reports issued by Republicans and Democrats on the House Intelligence Committee.
However, Michael Cohen's actual statement to the Senate Intelligence Committee leaves little room for his latest revelation to be true, as he declaimed not only any knowledge of any such improprieties, but also that Donald Trump participated in any improprieties:
Given my own proximity to the President of the United States as a candidate, let me also say that I never saw anything - not a hint of anything - that demonstrated his involvement in Russian interference in our election or any form of Russian collusion.
If we assume, as the legacy media insists we must, that a meeting with a Russian claiming to have opposition research on Hillary Clinton, represents "Russian interference," then either Cohen is lying now, or he perjured himself before the Senate Intelligence Committee. The one and only escape valve that would reconcile his past and current statements is if Don, Jr.'s, now-infamous meeting at Trump Tower is in fact not an instance of Russian meddling--a conclusion which immediately topples the entirety of the Russian collusion narrative. 

Cohen is not the only factual problem faced in perpetuating the current hysteria over Russia.  Even Special Counsel Robert Mueller's latest round of indictments, alleging a dozen Russian intelligence agents hacked the DNC computers and released several embarrassing documents retrieved from those systems, runs afoul of earlier claims and assertions made regarding Russia.

Mueller's indictments specifically allege that the named Russian agents used a hacker known as "Guccifer 2.0" to facilitate leaking the stolen data:
Beginning in or around June 2016, the Conspirators staged and released tens of thousands of the stolen emails and documents. They did so using fictitious online personas, including “DCLeaks” and “Guccifer 2.0.”
However, not only does the original forensic analysis by Crowdstrike identify two different Russian hacking entities--"Cozy Bear" and "Fancy Bear"--thus discounting the claimed involvement of the Guccifer persona, but further analysis of Guccifer-related material by cyber security firm ThreatConnect explicitly discounts Guccifer's involvement.  ThreatConnect's conclusion is that Guccifer is an intentional distraction from the "real" Russian cyberattack:
Although the proof is not conclusive, we assess Guccifer 2.0 most likely is a Russian denial and deception (D&D) effort that has been cast to sow doubt about the prevailing narrative of Russian perfidy. While targeting political campaigns for espionage purposes is not new, the greatest concern would be the use of the Guccifer 2.0 persona to leak documents of questionable integrity and authenticity in an effort to manipulate the outcome of the U.S. presidential election.
Both the Mueller indictments and the Crowdstrike/ThreatConnect analysis are themselves challenged by analyses performed by the Veteran Intelligence Professionals for Sanity, which makes the case that the "hack" was in fact an inside job: 
Forensic studies of “Russian hacking” into Democratic National Committee computers last year reveal that on July 5, 2017, data was leaked (not hacked) by a person with physical access to DNC computers, and then doctored to incriminate Russia.
As I have observed before, the VIPS memorandum is one of the few analyses which can be independently assessed, as the source materials are made available to public scrutiny--a quality noticeably lacking in the Crowdstrike report and ThreatConnect's complementary analysis.

In almost every regard, the current narrative of Russian electoral interference is contradicted by the 2017 version of that same narrative. Even if we assume that Russian meddling happened (an assumption which must be regarded as problematic, given the VIPS memorandum), we are still confronted with reconciling past and current reporting regarding said meddling. As with Michael Cohen's latest claims, the 2018 narrative can only be true if the 2017 narrative is false. Mueller's indictments of Russian agents can only be sustained if the Crowdstrike analysis of the DNC hack is refuted.

For the rationally-minded, this will not do. Historical facts do not change--the past is always permanently etched in stone. Understanding can only come when all established facts are scrutinized and reconciled--something the legacy media has not even attempted to do. Whatever malfeasance Russia may have done is not revealed by a constantly evolving and incomplete recitation of the underlying facts. A case for impeaching--or defending--President Trump is not advanced by a constantly evolving and incomplete recitation of the underlying facts. Strengthening measures for guaranteeing the integrity of our elections cannot happen when there is a constantly evolving and incomplete recitation of the underlying facts. 

Despite the rantings that pass for reporting among the legacy media, we must look at the facts--all of the facts--without regard to the conclusions they support if we are to come to a full understanding of them. Regardless of the hyperventilations of the legacy media, the facts--and only the facts--matter.

Friday, July 27, 2018

There stands President Trump. What Crime Has ANYONE Found?

Lavrentiy Beria, head of the NKVD under Josef Stalin (The Soviet Union's secret police and precursor to the infamous KGB), is often cited as having said "show me the man and I'll find you the crime."

We should be mindful of these words in regarding the broad authority granted Robert Mueller in his appointment as Special Counsel for the US Department of Justice, charged with investigating possible "collusion" between the campaign staffs of Donald Trump and Russia. We should be mindful for the simple reason that Deputy Attorney General Rod Rosenstein, at the time of Mueller's appointment, explicitly discounted any presumption that any criminal offense had even taken place:
“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter,” said Deputy Attorney General Rosenstein. “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”
Mueller's appointment was never even an assertion that a crime had been committed, much less that President Trump had committed one.  This alone made Mueller's appointment something of a legal oddity, for the federal statute governing the appointments of Special Counsel, 28 CFR § 600.1, specifically references criminal investigations:
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted....
Moreover, the investigation must be grounded in a specific crime (or at least the allegation of a crime), as 28 CFR § 600.4(a), requires some specificity as to the subject of investigation:
The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated....
Former US Attorney Andrew McCarthy highlighted these apparent defects of Mueller's appointment in a 2017 piece for the National Review, and I encourage those wanting a fuller understanding of the legal issues to read it.  I highlight these points merely to underscore the "Beria-esque" nature of Mueller's appointment: He was shown Donald Trump, and challenged to find the crime.

After a year (and an untold number of millions of dollars spent), the question now becomes: "What crime has Mueller found?"  What crime has anyone found? What credible accusation of criminal offense may now be laid at President Trump's feet?

The answer appears to be: none. There is no crime alleged. There is no accusation to be made.

Consider the tangible fruits of the Mueller probe to date:  
  • George Papadopoulos, a foreign policy advisor to the Trump campaign, pleaded guilty in October 2017 to making false statements to the FBI.
  • Michael Flynn, President Trump's one-time national security advisor, pleaded guilty in December of 2017 to making false statements to the FBI.
  • Rick Gates, business partner and lieutenant to Trump campaign manager Paul Manafort, plead guilty in February 2018 to one count of making false statements and one count of "conspiracy against the United States", both charges arising out of political consulting work Manafort and Gates provided to Ukrainian politicians several years ago--work wholly unrelated to either the Trump campaign or the 2016 election cycle as a whole.
  • Richard Pinedo, someone with no known affiliation to either Donald Trump or the Trump campaign, pled guilty to a charge of identity theft, in connection with a series of indictments Mueller announced involving a number of Russian nationals and Russian-based companies.
  • Alex van der Zwann, also with no known affiliation to Donald Trump or the Trump campaign, pled guilty to making false statements to the FBI.
These represent the sum total of prosecutorial "wins" Mueller has obtained as a result of his investigation.  Not one of these guilty pleas even hints at a larger crime or conspiracy having been perpetrated by President Trump or members of his campaign staff.  As regards President Trump, Mueller has failed to even allege any crime.

Mueller's investigation has also resulted in the following criminal indictments:
  • One-time Trump campaign manager Paul Manafort was indicted in October of 2017 on a number of charges, including money laundering and making false statements, all in relation to work done long before his involvement with Donald Trump's Presidential campaign.
  • Manafort associate Konstantin Kilimnik, was indicted in June of 2018 with obstruction of justice, purportedly by attempting to tamper with potential witnesses in the Manafort case.
  • In February of 2018, Mueller indicted 13 Russian nationals and three Russian entities on charges of conspiring to interfere with “US political and electoral processes, including the presidential election of 2016.” However, it must be noted that, in announcing the indictments, the Department of Justice explicitly excluded any allegation of any American--including Trump campaign operatives--being a willing party to the criminal acts alleged: "There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity. There is no allegation in the indictment that the charged conduct altered the outcome of the 2016 election. "
  • In July of 2018, Rod Rosenstein announced indictments of 12 Russian GRU intelligence agents on charges surrounding the alleged hack of the DNC servers in the spring and early summer of 2016.  As with the February indictments, American involvement was specifically discounted: "There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity or knew they were communicating with Russian intelligence officers."
27 individuals and three companies indicted, and none of the indictments even hint at a crime committed by Donald Trump or his campaign staffs.  Moreover, in announcing both sets of Russian indictments, the Department of Justice specifically rejected the possibility that the alleged activities influenced the outcome of the election, stating outright that "there is no allegation in the indictment that the charged conduct altered the vote count or changed the outcome of the 2016 election." Even if every single indictment results in a conviction, not a single one points to any criminal conduct by President Trump or his associates.  A year after Mueller was shown Donald Trump, he has failed to find any crime.

Nor has anyone else managed to find an actual crime.  Outside of the Mueller investigation, the most notable potential source of wrongdoing is the allegation that President Trump had an affair with porn star Stormy Daniels in 2006, and possibly another with Playboy model Karen McDougal. Because of payments made to Daniels and McDougal, arranged by Trump lawyer and "fixer" Michael Cohen, during the fall of 2016, there has been some intimation of campaign finance violations, but even that becomes highly problematic given Cohen's revelation of recorded conversations with Donald Trump discussing such payments.  Even if the allegations themselves are true, adultery is not a crime.

It is disingenuous and facile to say that Donald Trump "may have" committed crimes, either in relation to Russian involvement in the 2016 election or with regards to his supposed mistresses.  Strictly as an hypothetical, that is always true, not just of Donald Trump but of anyone.  However, crime is not an hypothetical.  Crime is factual. Accusations of crime require there be a date, a place, a time, and a law that has been broken. Accusations of crime require there be facts.  So far, there have been no facts that even identify a crime that Donald Trump could plausibly have committed.

Lawyer after lawyer has been shown Donald Trump, and lawyer after lawyer has failed to find a crime. Maybe there is a crime lurking just out of sight, and maybe it will be soon brought to light.  Maybe.

For now, the reality is there are no crimes that can be alleged against Donald Trump.





Saturday, July 21, 2018

Facebook Fact Checkers -- Just More Fake News

Apparently, I am now part of the "alt-right"/"alt-media" cadre.  Facebook has decreed the page I have to help publicize this blog as contributing to the spread of "fake news.":

First, some background.  I maintain a Facebook page of the same title as this blog, "A Voice Of Liberty", and in addition to using it to promote my various postings and pages here, I also post links to news stories that I consider to be interesting and relevant to the political discourse at large. I also share a substantial number of these postings to various Facebook groups.

On July 17, 2018, I posted an article from TruePundit which highlighted an alleged assertion by Lisa Page that Chinese hackers penetrated Hillary Clinton's email server:

The embattled Page tossed James Comey, Andrew McCabe, Peter Strzok and Bill Priestap among others under the Congressional bus, alleging the upper echelon of the FBI concealed intelligence confirming Chinese state-backed ‘assets’ had illegally acquired former Secretary of State Hillary Clinton’s 30,000+ “missing” emails, federal sources said.
As I have done countless times, I shared this article among several Facebook groups. Yesterday, on July 20, 2018, I received the notification in the graphic above, that Factcheck.org reviewed the TruePundit article and labeled it "false".

Unfortunately for Factcheck.org, what's "false" is its review and rating--that is provably false.

Factcheck's "rebuttal" is in reality a rather ham-handed red herring argument, centering on an assertion by Lisa Page's lawyer, Amy Jeffress:
“These stories are completely false,” Amy Jeffress said in a statement provided to FactCheck.org. “In nearly ten hours of testimony before the Committees, Lisa did not say a single word about China hacking the DNC server, and this conspiracy theory about the FBI instructing her to cover up such a story is nonsense. Her testimony was consistent with the intelligence community’s unanimous assessment: the evidence demonstrated Russian interference in the election.
Except the TruePundit article did not mention the DNC server, but Hillary Clinton's email server. Factcheck.org even quotes TruePundit and explicitly mentions that Lisa Page's assertion was in regard to Hillary Clinton's server, and not the DNC server, yet focuses on the alleged hack of the DNC server. The quoted statement from Lisa Page's attorney, Amy Jeffress, makes no mention of the Hillary Clinton server; it has no bearing on the TruePundit article.

Factcheck.org is disputing a claim TruePundit did not make. Factcheck.org is thus itself demonstrably guilty of producing "fake news". Facebook is guilty of disseminating "fake news" by attaching Factcheck.org's red-herring rebuttal to my sharing of the TruePundit article.

Additionally, the possibility--even probability--of China having hacked Hillary Clinton's email server has been reported upon by the legacy media, including the New York Times and Politico. The Washington Times reported in 2016 on indications that at least the US Secret Service was aware that Hillary Clinton's email server had been hacked.

The "revelation" in the TruePundit article is not Lisa Page's claim that China hacked Hillary Clinton's email server--which has been rather widely reported in the past--but that the FBI knew this and chose to cover it up. Even that assertion is not without some historical precedent thanks to the aforementioned Washington Times report.

Factcheck.org is demonstrably guilty of producing fake news. Facebook is guilty of disseminating fake news.

The facts prove it. The links prove it.

A few disclaimers and disclosures in the interests of transparency:
  • I have no affiliation with TruePundit. I read their content from time to time, and share links to their content when I find it interesting and relevant to the larger political discourse in this country. The only way I can vet their content is by comparing it to other content from other sources--which is what all well-informed citizens should strive to do.
  • Similarly, I have no affiliation nor conflict with Factcheck.org. or Facebook.
  • Neither my Facebook page nor this blog are monetized. I do not receive any compensation from ads or any other source for what I write and what I share.
  • TruePundit's article may prove to be inaccurate or completely wrong. Until Lisa Page's congressional testimony is made public--or, preferably, that she give actual testimony in an open forum without redactions--we cannot know absolutely the accuracy of the article. However, this is the case with all news articles, and it is only when we have access to primary sources that we may plausibly hope to actually fact check any news article.  Skepticism and a focus on the facts are virtues to be cultivated, particularly in regards to political reporting.

Tuesday, July 17, 2018

Trump-Russia....Are There ANY Facts Out There?

The American political establishment has lost what little sanity it possessed.

After President Trump failed to publicly excoriate Russian President Vladimir Putin for the alleged meddling by Russia in the 2016 election, pundits on both the right and the left went into epic meltdown mode. Words like "treason" and "surrender" were thrown around with total abandon.

To add insult to injury, much of the media hyperbole was based on a complete misrepresentation of what Donald Trump actually said. While he did not accuse Putin outright of election meddling, neither did he exonerate him.  As Tom Trinko cogently observed afterwards:
Trump never said the Russians didn't meddle – only that he discussed the issue with Putin and Putin denied it.  Putin appears to be ready to back his claim up by providing Robert Mueller access to the 12 supposed hackers.
Putin could be lying, but nothing Trump said boils down to "the Russians didn't meddle."  Rather, Trump was being diplomatic and didn't directly call Putin a liar.
All of this brings to the fore a simple yet rarely asked question: "What are the facts?"  What is the actual empirical data that is actually known about Russia's presumed interventions in the 2016 elections?

Is there any such data?  Frighteningly, the answer may very well be "no":
  • As I wrote when the Intelligence Community Assessment was first published in January of 2017, the report itself is contradictory and problematic, and fundamentally fact free.  It was and is an opinion piece, and nothing more.
  • In September of 2017, Facebook came forward to announce that a Russian entity, the Internet Research Agency, had purchased a number of ad pages on the platform. Yet when the ads themselves were disclosed, their political impact seemed uncertain at best, and their impropriety seemed almost nonexistent. As evidence of improper "meddling", the ads are simply laughable.
  • In Mueller's first round of Russian indictments, the cases almost immediately imploded, first when it was revealed one of the companies named did not exist during the time frame covered by the indictments, and then when it was discovered that Mueller's investigators never translated the proffered "evidence"--largely uncorroborated social media posts--from their original Russian.
  • Mueller's second round of Russian indictments appears not to have been much better. In addition to be built essentially around apparently hearsay testimony, some of the particulars in the indictment may very well have been cribbed from other, unrelated investigations.
Weak evidence, false evidence, no evidence--objective scrutiny of Russia's alleged malfeasance is for the moment impossible because there is no publicly available objective data--no factual evidence--to scrutinize.  Two years of investigation and endless hyperbole from hyperventilating pundits and politicians, and we have no facts.

By way of comparison, I submit a memorandum published on Counterpunch by a group called "Veteran Intelligence Professionals for Sanity" (VIPS), suggesting that the alleged hack of the Democratic National Committee's servers might have been an inside job and not an outside hack.  I do not know if their assessment is more or less accurate than the ICA from January of 2017.  I do know the assessment is factually grounded, where the ICA is not.

How is the VIPS memo factually grounded?
  • For starters, links and citations are provided to primary source materials.  We are not obliged to take the VIPS team at their word, but are allowed and even invited to scrutinize the primary source data for ourselves.
  • The primary source data is a forensic study of an archive of DNC material, part of a hack of the DNC network performed on July 5, 2016.  The forensic analysis includes a link to the archive itself.
  • The forensic study provides an explanation of the examinations and computations conducted on the archive, thus providing a clear logical basis for the conclusions reached.
Even if the VIPS memorandum should prove inaccurate, it is still a superior treatment of these issues because it makes repeated reference to objective data that can be independently verified and scrutinized.  Nothing from Mueller's prosecutorial efforts provides this level of comfort.  The ICA does not provide this level of comfort.  We are being asked to take these agencies at their word, while VIPS all but requests independent scrutiny.

Two years of investigation and endless hyperbole from hyperventilating pundits and politicians, and we have no facts. We have no objective data which we may independently verify and analyze. We have only opinion and allegation.  This is the objective reality of the multiple investigations into the alleged malfeasances of Russia.

Absence of proof is not necessarily proof of absence.  We cannot automatically infer from this lack of objective data that Russia is innocent of any wrong doing with regard to the 2016 election.  However, the longer we are faced with an absence of proof, the less likely the claim of Russia malfeasance becomes, and the more likely that the truth of the 2016 election is something far different than the current hysterical and histrionic narratives of the media.

Saturday, June 30, 2018

Justice Kennedy's Retirement Is A Reminder That Every Day Is A Time For Choosing

A great deal of speculation, pontification, and blatant posturing followed Justice Anthony Kennedy's June 27th announcement of his retirement from the Supreme Court. Predictions of a coming reversal of newly-won (some would say newly-created) civil rights abound. Celebrations of the first decidedly conservative Supreme Court in seventy years flow with equal abandon.

As is common when politics intersects the law, both sides are missing the point.

Justice Kennedy's retirement--as is the case with all outgoing Supreme Court justices--is a moment that calls each citizen to remember the role the Court plays not only in our government but in our society.  It is a reminder that our elected officials, our Presidents and Senators, are empowered to impact both government and society not only for this generation, but for all subsequent generations. If our elected officials typify the society we are today, justices illuminate what manner of society we will be tomorrow. The composition of the Supreme Court is not a "liberal" or "conservative" question, nor even a purely political question, but is an "American" question.

Justice Kennedy's retirement is an invitation to reread what the Constitution says about the Supreme Court, and understand what role it plays in Constitutional government.

The Supreme Court is the only court in the United States mandated by the Constitution (Article 3, Section 1):
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
The Supreme Court is an appellate court for almost all cases within Federal jurisdiction (Article 3, Section 2), " both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Appellate jurisdiction empowers the Court to review both the verdicts of lower courts within the Federal judiciary and their interpretations of Federal law, which includes assessment of the Constitutionality of Federal law.

Under the Constitution, the Supreme Court is the highest judicial authority. Its interpretations of Federal law are binding upon all Federal courts, and its rulings are applicable to the whole of the Federal government--as Chief Justice John Marshall wrote so powerfully in Marbury v Madison, "It is emphatically the duty of the Judicial Department to say what the law is." Yet it does not possess unlimited power or unlimited authority. The 11th Amendment sharply limits its jurisdictions where disputes involve a single state, and by inference John Marshall's own assessment of the role of the Court does not extend to saying what the law should be--that duty is reserved to the Congress.

The truth of the Supreme Court is that its Constitutionally-defined construction and jurisdiction are distinctly non-partisan and non-ideological. Political ideologies are the foundations of advocacy for what laws we should have, and what laws we should discard, but no advocacy can alter the text of the laws as they are written. The role of the Court is to apply the law--apply the letter of the law--to cases brought before it, and the law is neither liberal nor conservative; rather, the law merely is.

Naturally, both liberals and conservatives desire judges and justices who will interpret the law in ways that favor their political aims.  This has always been true, and it will always be true. It is also true there have been judges and justices who have contorted and distorted the law (including the Constitution), to arrogantly impose their views on society--such cases are etched permanently in our judicial comprehension: Dredd Scott v Sanford, Roe v Wade, Obergfell v Hodges. Yet the Constitution calls for a Court that rises above both partisan and personal ideology, that dispassionately reads the law as it is written and just as dispassionately applies it to the cases brought before it.

The Supreme Court is not merely the balancing third branch of the Federal government, acting as a brake upon the predations of both the legislative and executive branches against the rights of the people. By its explicit charter within the Constitution, it is the guarantor that the rule of law shall remain the foundation of this Republic. John Marshall was not the first to conceive the idea that no act of Congress could contravene the Constitution--the Kentucky and Virginia Resolutions argued that exact idea in much the same language as Marshall some five years prior to Marbury--but it was the Court's finding in Marbury that put the matter beyond all dispute, "...an act of the Legislature repugnant to the Constitution is void." The Court is this nation's assurance that not even the Congress can contradict the Constitution.

Thus it is that the promise of the Court, if not always its legacy, is that, under our Constitution, within the limits of the Constitution, the rights of all people shall always prevail.  The Court thus becomes the embodiment of the Constitutional ideal, that this Republic be governed by laws rather than men.  This is the Court we can have, so long as sober and serious justices occupy its bench.

Yet justices are but men, and they are appointed by men, who are in turn elected by men. So it is that Justice Kennedy's retirement is a reminder to us all that Constitutional government only works when We The People are prepared to do the work of governance.  We will only have the Court the Constitution promises us if we elect Presidents and Senators who understand, appreciate, and esteem that promise, and who are serious in their oath of office to ensure they appoint justices who will give us that Court.

Justice Kennedy's retirement, as is the retirement of every justice, is the periodic reminder that, in a republic, every day is a time for choosing. Every election is a matter of consequence, and every vote is of significance. Justice Kennedy's retirement is our periodic invitation to engage with our government, with both the President and the Senate, to petition that we might get the justices and the Court the Constitution has promised to us.

The Court may say what the law is, but ultimately it is We The People who will say what the law should be, and it is We The People who will say how the Court shall be. As Justice Kennedy closes his long and distinguished tenure on the bench, the best honor we could show him would be to remember this simple truth, and to put this simple truth into action, today, and every day.

Sunday, June 3, 2018

Tommy Robinson exposes the dark underbelly of the GDPR: censorship

Well, that didn't take long.

On Friday, 25 May 2018, the European Union's sweeping privacy-oriented General Data Protection Regulation (GDPR) went into effect. On that day, faced with sudden exposure to steep, even crippling fines for potential "breaches" of user privacy, many Internet and social media sites ceased or suspended their European operations, and "went dark" across the continent.

That same day, British activist and citizen journalist Tommy Robinson was arrested, and--in the space of less than six hours--sentenced to 13 months in prison for "breaching the peace", the charge brought on by his online reporting of the trial proceedings of a rape gang trial in the the UK city of Leeds. In the same proceeding that whisked Tommy Robinson off to prison, the court declared a media ban on all reporting surrounding Tommy Robinson, his detention, trial, and 13-month sentence. So emphatic was the ban that regular British media outlets such as The Independent have actually scrubbed their websites of news articles published immediately following his arrest. 

Note: The media ban was lifted a few days later, thanks to the efforts of the Rebel Media and others, although mainstream media coverage of Tommy Robinson's arrest and incarceration remains virtually nonexistent.

I am not going to comment on the propriety of his arrest other than to say that a number of notable citizen journalist, members of the so-called "alternative media", or "alt-media", have expressed a fair amount of horror and dismay, believing the charge to be essentially a manufactured one, one used with the specific and sinister intent of silencing a dissenting voice and critic of UK government policy. I am not in the UK, I am hardly an expert on UK law, so I leave the legal particulars of the matter to those more qualified in that subject than I.

Similarly, I am not going to comment on Tommy Robinson's activism. My opinion on his activism can best be summarized by Clark Gable's classic closing line from Gone With The Wind: "Frankly, my dear, I don't give a damn." Tommy Robinson is a man with a point of view and a political agenda, no more but certainly no less. His views can and should be investigated, critiqued, even criticized. That he should be heard is certain; more than that is a choice each of us should make in the privacy of our own conscience.

However, I am going to comment on the propriety of the media ban and the efforts of the UK government to muzzle any and all mention of Tommy Robinson, his arrest, detention, and incarceration. Rather, I point out the complete lack of propriety, of respect for the principles of free speech and a free press that are essential to sustain any level of freedom in any society. It may very well be within the scope of UK law for the courts to declare Tommy Robinson a non-person; it is not within the scope of decency, of ethics, or of any respect for fundamental civil liberty. Whether or not Tommy Robinson is guilty of a crime, whether or not Tommy Robinson's political views or agendas are in keeping with the aims of either the British government or the British people, he is still retains the basic human right to be heard, as do those who would advocate on his behalf. That right has been summarily eradicated by the British courts.

Coincidentally--or perhaps intentionally--the Brussels diktat known as the GDPR is aiding and abetting this deplorable deprivation of civil liberty. British media sites of course are complying with the media ban decreed by the courts--and the stifling confines of the GDPR's "privacy" protections have ensured that few other media sites, mainstream or alternative, are available to give Tommy Robinson or his supporters the voice that is their due. The platforms that would otherwise be the natural vehicles for those voices are suddenly less available. Fear of the GDPR's onerous penalties and the fascistic EU bureaucracies charged with levying them is creating a great silence where the voices of dissent otherwise would be. Regulation enacted to "protect" Internet users has almost immediately been turned into a tool with which to silence them. The price of privacy, at least in Europe, is the cessation of free speech--indeed, the cessation of civil liberty itself.

To the avowed libertarian such as myself, this comes as no surprise. In all of human history, there are no examples where an expansion of government power produces an expansion of human freedom, and there are far too many examples where the expansion of government power produces an expansion of human misery. The regulatory power of government, being coercive rather than persuasive, flowing solely from the barrel of a gun, is by its very nature antithetical to individual liberty. Regulation which inhibits or controls speech is by its very nature a diminution of the free speech that is essential to the preservation of individual liberty in any society. As Thomas Jefferson is oft quoted as having said: "When government fears the people, there is liberty. When people fear the government, there is tyranny." The GDPR is tyranny.

Free speech matters more than the technical proceedings of a court. Free speech matters more than the particulars of any law in any one nation. Ultimately, free speech must matter more than technical concerns regarding privacy. Free speech is the essence of free society. It is the basis by which we have free markets. It is the cornerstone of free enterprise. When free speech is attacked, freedom and all the blessings thereof are diminished. When free speech is attacked, we are all diminished. Without free speech, personal privacy is rendered meaningless.

Giving up essential liberty for the preservation of privacy is too high a price to pay. No matter how noble the intentions used to justify the GDPR, the silencing of dissidents such as Tommy Robinson is too high a cost. And there is no denying that the GDPR is helping to silence Tommy Robinson's dissent, merely by making alternative platforms by which his dissent might be heard too risky and expensive a proposition to sustain. When news sharing sites such as Instapaper block European viewers, when online advertising firms suspend their European operations, the availability of platforms for dissenting voices--for those contrarian views essential for a thriving marketplace of ideas--is immediately reduced. The draconian fines and byzantine compliance structures imposed by the GDPR have the inescapable--and I dare say intentional--effect of winnowing and reducing platforms by which dissent of all kinds can be heard.

For the sake of free speech, for the sake of us all, Tommy Robinson's dissenting voice must not be silenced. Shame to the British courts for silencing that voice, and double shame to the Brussels bureaucrats who authored the GDPR for aiding and abetting that silencing. The Internet was created as a tool for communications, for the free exchange of ideas; the GDPR is the expressed intent of too-powerful bureaucrats to bring that exchange to an end, and for proof of that evil intent we need look no further than the silencing of Tommy Robinson. That is reason enough to denounce the GDPR. That is reason enough to call for its immediate and permanent revocation.

Saturday, April 7, 2018

Immigration: a question of law, not "justice".

Immigration is a contentious issue, not just in the United States but throughout the Western world. Immigration is a central theme of Hungarian President Viktor Orban's re-election campaign. Immigration is a major divide within the American polity, with states such as Texas and Arizona enthusiastically supporting President Trump's call for National Guard troops to protect the US border with Mexico, while states such as California applaud the efforts of state and local officials to thwart enforcement and deportation actions by ICE.

Amazingly, despite all the rhetoric coming from all sides of the immigration debate, very little attention is given to what should be the core of the debate--the state of immigration law.  More than any other public policy question, immigration is almost exclusively a matter of law, of what the law is, and what the law should be.

What the law is:

  • Article I, Section 8, Paragraph 4 of the United States Constitution explicitly charges the Congress with drafting immigration laws.

  • The body of US Immigration Law is codefied under Title 8, Chapter 12 of the US Code.

  • Every President, upon inauguration, swears an oath to "preserve, protect, and defend the Constitution of the United States", as mandated in Article 2 Section 1 of the Constitution. Every President is explicitly named as Commander-In-Chief of the Armed Forces in Article 2 Section 2.

  • The Constitution is the supreme law of the United States. Article 6 of the Constitution makes this explicit, and explicitly binds all public officials to respect that supremacy.

Americans can--and should--debate what the substance of immigration law should be. That is our right and our duty as citizens.  Yet it is absurd and even asinine to ignore or deny what the substance of immigration law is. 8 USC §1151 establishes explicit numerical limits on immigration. 8 USC §1182(f) specifically empowers the President to bar certain classes of aliens "by proclamation" (meaning no Congressional involvement is required or even allowed). Whether these laws are good or bad, wise or unwise, just or unjust is immaterial. These are the laws we have. These are the laws government officials take an oath to enforce. On this point there can be no debate, there is no argument.

Nor can there be any debate that every US President has the right and responsibility to secure the borders of the United States. Every President is duty bound from his oath to defend the Constitution, and that necessarily includes defending the territory of the United States. Every President is explicitly named as Commander-In-Chief of the Armed Forces in order to secure that defense.

No immigrant has any right or expectation of admission into the United States. 8 USC §1361 explicitly assigns to the immigrant the burden of proving he or she is eligible for admission. Lacking such proof, the mandate of the law is that said immigrant be denied entry into the United States. Congress has the power to alter that mandate, but thus far it has declined to do so.

No immigrant can simply cross the border into the United States, but must enter through established checkpoints. 8 USC §1325 makes it a crime to enter the United States but through established checkpoints. 8 USC §1326 enhances the sanctions for repeat violations of this statute. Congress can alter these statutes but thus far has declined to do so.

Laws can be changed. Where laws are seen as unjust one hopes they will be changed. Yet until they are changed, the laws on the books are the laws of this land, and, as such, they must be enforced. If we are to remain a nation of laws, these laws must be enforced until they are changed.

On this, there can be no debate.

Friday, February 23, 2018

The Parkland Shooting: Failure By Design

The mass shooting at Marjory Stoneman Douglas High School was a barbarity. The wanton slaughter of 17 people was--and is--an outrage.  If you are not angry reading about it, you are either mentally ill or not really paying attention.

As our minds grapple with the sheer inhumanity of such an act, we seek to bring order and structure to the madness.  We want to know who did what, who did nothing, who had a hand in the commission of this crime. We point fingers, because as human beings that is what we do.

There is but one person to blame for this shooting, and that is the shooter himself. He alone opened fire on defenseless high school teens.  He alone decided to take human life.

But while the shooter is to blame for the shooting, let us not fail to note that, regardless of the choices the shooter made or did not make, this tragedy was absolutely preventable. This tragedy should have been prevented. That it was not is every bit as horrific as the shooting itself.

The most galling aspect of the failure to prevent this shooting is that the steps needed to prevent the shooting are uncontroversial and not terribly expensive. No curtailment of civil liberties are needed to stop school shootings, no problematic gun laws that inevitably run afoul of the Second Amendment need be enacted. We need not rely on law enforcement to diligently follow protocols, and investigate every tip and warning given. Had the school been properly secured, this shooting would never have happened.

Consider the timeline that has developed of the shooting itself:
  • 2:19 -- The shooter exits an Uber car and walks into the school
  • 2:21 -- The shooter opens fire in several classrooms.
  • 2:28 -- The shooter drops his weapon and exits the building.
How does someone--someone not even a student at the school--simply walk into the school unimpeded? How is any person able to carry a firearm through the front door of the school without being stopped?

That is the real horror in this: that the shooter had easy access not to firearms, but to the school. With or without a weapon, he should never have gotten through the front door, or even on school grounds. There is no reason that should be allowed in any school anywhere.

Yet Marjory Stoneman Douglas is a typical high school in the United States. And--unsurprisingly--this was a typical high school shooting. By some measures, Parkland was the 208th school shooting since the 1999 Columbine tragedy. In every single one of these incidents, the same galling questions must be asked: how does someone merely walk into a school unimpeded, and how are they able to carry a firearm onto school grounds? In every single one of these incidents, there are no good answers to be had.

Add to those questions this further damning interrogation: how is it that, after more than 200 such events, almost nothing has been done to make schools more secure? 

It is true that some schools, such as Southwestern High School in Shelbyville, Indiana, have implemented strong security systems, but they are by far the exception and not the rule. By and large, America's schools are as unprotected and vulnerable as they were two decades (and 200 shootings) ago.

Nor is it necessary to have a state of the art security system to stop the would-be shooter.  A few basic security elements, such as a "man trap" at the main entrance to the school, make unauthorized access far more difficult. Nearly every courthouse in the nation has metal detectors at their main entrances, as do all airports as well as most concert venues--yet security "experts" argue that their use in schools is a bad idea!

In his classic treatise on strategy and tactics, Sun Tzu wrote "You can ensure the safety of your defense if you only hold positions that cannot be attacked." This is the goal of all security: invulnerability to attack. It should be the goal of school security--and it has not been.

Yet hardening schools, and making them invulnerable to these attacks, has not been at the forefront of the media coverage of this event.  We have heard of the evils of guns, and the need to shred the Second Amendment to confiscate guns. We have heard of the multiple failings of law enforcement, from the FBI on down to the Broward County Sheriff's Office. We have heard of the wisdom or unwisdom of arming teachers. We have not heard much of man traps, nor of metal detectors, nor other basic security mechanisms that would impede the miscreant and make doing mischief within a school that much more difficult.

The horror of Parkland that every parent in America must now face is this: our schools are not safe--by design. Our schools are not built to keep our children free from harm during the school day. Our schools are not built to thwart attacks by evildoers. Our schools are the antithesis of secure--they are vulnerable when they should be invulnerable.

Tragically, even after Parkland, there is no indication that will ever change.