Daily Check-In 10/31/2018

Wednesday, October 31, 2018.  Halloween.



From the Politco article:

The evidence lies in obscure docket entries at the clerk’s office for the D.C. Circuit. Thanks to Politico’s Josh Gerstein and Darren Samuelsohn, we know that on August 16 (the day after Giuliani said he was almost finished with his memorandum, remember), a sealed grand jury case was initiated in the D.C. federal district court before Chief Judge Beryl A. Howell. We know that on September 19, Howell issued a ruling and five days later one of the parties appealed to the D.C. Circuit. And, thanks to Politico’s reporting, we know that the special counsel’s office is involved (because the reporter overheard a conversation in the clerk’s office). We can further deduce that the special counsel prevailed in the district court and that the presumptive grand jury witness has frantically appealed that order and sought special treatment from the judges of the D.C. Circuit—often referred to as the “second-most important court in the land.”

Nothing about the docket sheets, however, discloses the identity of the witness. Politico asked many of the known attorneys for Mueller witnesses—including Jay Sekulow, another Trump lawyer—and each one denied knowledge of the identity of the witness. (What, of course, would we expect a lawyer to say when asked about a proceeding the court has ordered sealed?)

But for those of us who have been appellate lawyers, the brief docket entries tell a story. Here’s what we can glean:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court—and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’ motion, the court gave the special counsel just three days to respond—blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s eight days after the midterm elections). Oral arguments are set for December 14.

At every level, this matter has commanded the immediate and close attention of the judges involved—suggesting that no ordinary witness and no ordinary issue is involved. But is it the president? The docket sheets give one final—but compelling—clue. When the witness lost the first time in the circuit court (before the quick round trip to the district court), he petitioned, unusually, for rehearing en banc—meaning the witness thought the case was so important that it merited the very unusual action of convening all 10 of the D.C. Circuit judges to review the order. That is itself telling (this witness believes the case demands very special handling), but the order disposing of the petition is even more telling: Trump’s sole appointee to that court, Gregory Katsas, recused himself.

There’s a good deal of speculation going on here, and Emptywheel debunks some of this, but something getting lost in this is that the Special Counselor’s Office is chugging along like a train.  Their actions are quiet and deliberate.  We won’t hear what they’re doing until an indictment drops, but they’re scaring the shit out of a lot of people.

Court documents unsealed after nearly 45 years show that a federal grand jury in February 1974 was prepared to indict former GOP President Richard Nixon on four criminal counts for his role in the 1970s Watergate scandal that led to his resignation.

The charges, including bribery, conspiracy, obstruction of justice and obstruction of a criminal investigation, would have been for Nixon and his administration’s attempt to cover up the break-in and wiretapping of the Democratic National Committee headquarters at The Watergate Hotel in D.C.

Five men were arrested on June 17, 1972, for their involvement in the matter. The men attempted to photograph DNC documents and wiretap DNC officials’ phones, potentially sabotaging the Democrats’ chances at unseating Nixon in the upcoming 1972 presidential election.

The draft of the indictment from a Washington grand jury stated that “from on or about March 21, 1973…Richard M. Nixon unlawfully, willfully and knowingly did combine, conspire, confederate and agree together and with co-conspirators…to commit bribery…obstruct justice…and obstruct a criminal investigation.”

It further added that Nixon met with John Dean, Nixon’s White House counsel, and Harry Haldeman, Nixon’s chief of staff, on or about March 21, 1973, in the White House and “instructed” them to pay approximately $120,000 to E. Howard Hunt Jr., a former CIA agent and organizer of the Watergate break-in. Hunt Jr. had made the initial demand for $120,000 for his role in the break-in of the DNC headquarters, according to the draft indictment.

That same day, March 21, 1973, Hunt Jr. received approximately $75,000 in cash from Nixon messengers to influence his testimony to criminal investigators, according to the draft indictment. The following day, Nixon aides told the president that Hunt Jr.’s “money problem had been taken care of.”

Despite the ongoing investigation and a bombshell report from Washington Post journalists Bob Woodward and Carl Berstein that said the FBI believed Nixon aides were responsible for the Watergate break-in, Nixon won re-election in 1972 against Democratic Senator George McGovern of South Dakota.

Facing three articles of impeachment in the House, Nixon announced his resignation during a live TV and radio broadcast from the Oval Office on the evening of August 8, 1974.

Interesting.  A grand jury had all but indicted Nixon six months before he resigned.  Even more interesting that this is being unsealed now.















In other words, it’s a lie he’s making up.























That’s it for Wednesday.  I don’t have much here because of Halloween and trick-or-treating.  As a parent, it’s one of the best parts of the job.  The level of excitement that a kid has when going door to door, getting candy from neighbors, is amazing.  It’s the one day of the year where we tell them it’s okay to accept weird gifts from strangers.

Dad’s job during trick-or-treating is to play pack mule and plan the route.  It’s important to find the most efficient route, so that they’re not doubling back on themselves, or walking down streets they’ve already hit.

Things should be back to normal on Thursday.  And by normal, I mean a complete and total clusterfuck.


Thank you, and have a good one.


“Without Journalists, it’s just propaganda.”

– Katy Tur

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