Daily Check-In 12/03/2018

Daily Check-In

Monday, December 3, 2018 and the weekend

 

THE RUSSIAN INVESTIGATION

Cohen’s Claims

It’s been quite a few days for Michael Cohen.  After his plea agreement on Thursday (Daily Check-In 11/29/2018) and revelations about what that meant on Friday (Daily Check-In 11/30/2018), it might seem like it’s hard to top what’s happening.  It looks like over the weekend, we’re still seeing the fallout of that bombshell.

According to these new reports, Cohen was talking to Trump’s legal team and White House staff while he was getting his story straight.  I’m not a lawyer, but admitting to working with the legal team of the person you’re lying for sounds like it might be a crime.  Like, Conspiracy to Obstruct Justice or Witness Tampering.

 

Cohen Sentencing

THREAD: What does Michael Cohen’s sentencing submission tell us about his cooperation against Trump and the potential involvement of others in his criminal conduct? (Short answer: A lot more than you might expect)

1/ Late on Friday night, Michael Cohen’s attorneys filed his sentencing submission. It is really worth a read:

2/ A sentencing memorandum is a document that defense attorneys write and submit to a court before a client is sentenced so that the judge can consider all of the facts and circumstances surrounding their client and his conduct when he is sentenced.

3/ Judges are required to consider the “history and characteristics” of the defendant as well as the “nature and circumstances” of the offense, so the types of information provided in a sentencing memorandum can be extensive.

4/ In many cases, there are disputes between the prosecutors and defense about what the defendant did, what sentencing guidelines apply to the defendant, or what the sentence should be. In the case of a cooperator like Cohen, I expect the only disagreement to be the sentence.

5/ It’s important to note that if a cooperator like Cohen made a false factual assertion about his cooperation or his criminal activity, the prosecutors would make that known to the judge. You can be confident that this document is consistent with Mueller’s knowledge.

6/ It is carefully written by an attorney who was a former high-ranking federal prosecutor in New York who knows that if he said something false or misleading, the New York federal prosecutors would make the judge aware of the falsehood and he would be very much worse off.

7/ I give you this background because there is very interesting information in this document, and part of what makes it interesting is that the info is specific and is made in the context where we can feel confident in its accuracy, even though it’s written by an advocate.

8/ The most interesting thing in the document, by far, is Cohen’s discussion of his false statements to Congress. His attorneys carefully discuss the false statements, his motivation to make the false statement, and the involvement of Trump’s staff and attorneys.

9/ Because the precision of their words is important, I’m going to type out their exact words here. They refer to Trump as “Client-1” throughout but I’ve changed that to “Trump” here for clarity:

10/ “Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then champion of Trump, to support and advance Trump’s political messaging. At the time that he was requested to appear before . . .”

11/ “the [House and Senate Intel Committees], Michael was serving as personal attorney to the President, and followed daily the political messages that both Trump and his staff and supporters repeatedly and forcefully broadcast.”

12/ “Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House based-staff and legal counsel to Trump.”

13/ That last sentence is extremely important and interesting. It is also very carefully worded. The sentence strongly implies that White House staff and Trump’s attorneys knew in advance that Cohen would lie to Congress and were involved in crafting his statements.

14/ But it does *not* come out and say that. It is important to note that Cohen’s attorney does not allege that Cohen was *directed* to lie to Congress. Yet Cohen’s lawyer has not been shy about having him say that Trump directed him to commit the campaign finance violations.

15/ If he could truthfully say that Cohen was *directed* to lie, I believe he would be obligated to do so because it would be a mitigating fact that the judge should consider. But Cohen’s attorney suggests that Cohen felt pressure to lie and that Trump’s staff and attorneys knew.

16/ Essentially what Cohen’s attorney is saying is that Cohen read Trump’s anti-Mueller messaging (discussed at length in the memorandum), knew that he was supposed to be consistent with Trump’s lies, and did so.

17/ He was also in “close and regular contact” with White House staff and Trump’s lawyers about what he would say. The implication is that they knew the testimony he was going to provide to Congress was false and let him go forward and lie, or at least didn’t correct the record.

18/ So do Trump’s staff members and attorneys have any liability? Possibly, although it appears that they tried to be careful to mislead Congress and the public in a manner that would not create personal liability.

19/ Specifically, it sounds like they knew Cohen would lie to Congress and didn’t stop him or correct the record. But they didn’t tell him what lies to say or direct him to lie because *they didn’t have to.” Cohen read Trump’s lies and knew he was supposed to repeat them.

20/ Depending on what Trump’s staff and attorneys knew, this could very well be a conspiracy to lie to Congress, which is a crime. (A conspiracy is just an agreement to commit a crime.) But it may be extremely difficult to prove based on what Cohen’s attorney said.

21/ What it would take to prove a conspiracy of that nature is testimony from another co-conspirator (a Trump attorney or staffer) that their conversations with Cohen were a way for him to run his lies past them for approval, and they approved the lies.

22/ Emails or other documentation proving that point would also potentially prove a conspiracy along those lines. I suspect that Mueller and House Democrats will try to find out what evidence exists of knowledge, approval, or coordination of Cohen’s lies.

23/ If all that happened is that Cohen told them he would lie and they didn’t stop him, that is not a crime, which is why they may have just listened. Their silence and failure to stop him was their approval, but also makes it hard to prove they were aware of his lies.

24/ Their defense would be that Cohen testified about many matters and that they weren’t focused on these specific portions of his testimony, and/or that they didn’t even know those portions of his testimony were false at the time. Prosecutors would have to prove otherwise.

25/ That is why emails or testimony from some of them would likely be needed to support a conviction. So what does the rest of the sentencing memorandum say? Quite a bit.

26/ First, the sentencing memorandum repeats the statement Cohen made under oath that Trump directed Cohen to commit the campaign finance violations, and provides important context to help the judge understand those violations and Trump’s involvement in them.

27/ Specifically, Cohen “kept his client [Trump] contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully …”

28/ “… Nevertheless, we respectfully request that the Court consider that as personal counsel to Trump, Michael felt obligated to assist Trump, on Trump’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives …”

29/ “… that would adversely affect the Campaign *and* cause personal embarrassment to Trump and his family.” That last line is an attempt by Cohen’s attorney to suggest that the offense is less serious than if the payments were just meant to influence the election.

30/ That is *not* a legal defense. It’s a crime nonetheless, and Cohen acknowledges that. His attorney minimizes the conduct because his job is to provide context that would reduce Cohen’s sentence. He’s doing his job.

31/ That’s also why he is pointing to the extent to which Cohen kept Trump informed of his actions at the time–more detail on that is given in the memorandum–and acted on his orders. It’s not an excuse but it helps provide context that explains why he committed the crimes.

32/ The next interesting part of his memorandum is its description of Trump’s legal and PR strategy. This is quite a statement to make on behalf of the president’s former personal lawyer:

33/ Cohen was “personally aware of Trump’s repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Trump that investigations of such ties were politically motivated and without evidentiary support.”

34/ What Cohen’s lawyer carefully does not say is whether those statements are true or false. But he immediately follows that statement by focusing on the specific falsehood at issue here and noting that it was also part of Trump’s false messaging.

35/ Part of what is going on here is that Cohen’s attorney is explaining that Trump’s extreme strategy of casting the entire investigation of him as false is a mitigating circumstance the judge should consider when taking into account his own crime of lying to Congress.

36/ But the description itself is quite an acknowledgement on his part. The last part of Cohen’s sentencing memorandum that is worth discussing here is his description of his cooperation. Cohen described in detail his cooperation with Mueller and other prosecutors.

37/ Cohen said that he participated in seven separate interviews with Mueller and that he met with representatives of the New York Attorney General concerning their civil lawsuit against the Trump Foundation and provided documents to them.

38/ Cohen also said that he met with the New York State Department of Taxation and Finance and has complied with numerous requests for information from them. Also, Cohen claims that the decision to push forward without a traditional cooperation deal was his own decision.

39/ He claims he is eager not to delay his sentencing, and wants to be sentenced now before his cooperation is completed, even though he intends to cooperate further. This is a very unusual and risky strategy by Cohen. The judge can’t be sure that he will continue cooperating.

40/ Once he is sentenced, the leverage that prosecutors have over him is reduced although it still exists and he has done a good job of demonstrating to the judge that he has fully cooperated, intends to continue to cooperate, and merits a low sentence.

41/ And that brings me to the last point. After disputing how the sentencing guidelines are calculated–Cohen believes the guidelines range should be 46 to 57 months–he asks for time served. I don’t believe he will receive a sentence of time served.

42/ That said, based on my experience prosecuting and defending federal criminal tax and fraud violations, I expect Cohen to receive a sentence well below the guidelines range. He will get some prison time but it may be less than some uninformed or disingenuous observers predict.

43/ One last point before I go: I wrote this from 2 a.m. to 4:10 a.m. and it may get lost in the morning. If you read this thread and found it informative, please consider retweeting it in the morning because I’d like people to see it when they wake up tomorrow. /end

I’m curious to see how this goes.  Because of Trump’s screaming about him getting a long prison sentence, his lawyers could actually use that in their defense.

 

Stone

 

Manafort

YEAY!!!!  I’m trying not to get my hopes up too much, but it’s hard not to get a little excited about this.

 

Comey

 

Witness Tampering

THREAD: Did Trump engage in witness tampering this morning when he tweeted in praise of Roger Stone’s refusal to cooperate with prosecutors?

Renato Mariotti Retweeted Donald J. Trump

1/ This morning Trump tweeted the following in praise of Roger Stone’s refusal to cooperate with Mueller:

Donald J. TrumpVerified account @realDonaldTrump

“I will never testify against Trump.” This statement was recently made by Roger Stone, essentially stating that he will not be forced by a rogue and out of control prosecutor to make up lies and stories about “President Trump.” Nice to know that some people still have “guts!”

2/ @gtconway3d, @neal_katyal and other highly respected attorneys quickly noted that Trump’s tweet looks a lot like witness tampering. They’re right—it does. But proving beyond a reasonable doubt that it’s witness tampering is more challenging than it might seem at first glance.

3/ I’ve included the relevant jury instruction below. Mueller would need to prove, among other things, that Trump had “corrupt” intent and acted with the intent to cause Stone to withhold testimony.

4/ Trump has said and done many things over the last two years that suggest that he often acts with the intent to impede the Mueller investigation—I collected many of them in the piece I wrote in January (below).

5/ But for purposes of a stand-alone witness tampering charge, what matters is Trump’s intent when he wrote this specific tweet. Evidence of his other acts would be very relevant but not dispositive.

6/ Trump’s lawyers would argue that the purpose of his tweet was to influence the public, not Stone, and that they could have spoken to Stone’s attorney privately if Trump actually wanted to influence him.

7/ Trump says a great many things on Twitter and isn’t careful with his words, so some courts have concluded that his words can’t be taken literally or seriously. Here is a short thread discussing those cases (which of course were in a different context):

Brad HeathVerified account @bradheath

The Justice Department says in a new court filing that when it comes to FISA declassifciation, President Trump doesn’t know what he’s tweeting about.

8/ Prosecutors would likely respond that by speaking broadly to the public instead of privately to Stone, Trump was trying to influence Stone in a manner that gave him plausible deniability.

9/ They would point to Michael Cohen’s recent sentencing memorandum, in which his attorney said that Cohen lied in part due to Trump’s messaging. My thread discussing that is below:

10/ Because of the challenges of proving “corrupt” intent, and the legal challenges Trump could bring, I think the best way for a prosecutor to charge today’s tweet would be as part of a larger conspiracy to obstruct justice, instead of as a stand-alone crime.

11/ I’ve been convinced since January that Trump obstructed justice for the reasons I explained in the piece linked earlier in the thread. That larger scheme would be easier to prove than a case based on a single tweet.

12/ But since the U.S. Senate, not ordinary Americans, would be the jury it’s unclear to me how much this will matter. It’s hard for me to imagine 20 Republican Senators voting to convict Trump for obstructing justice. It’s unclear what it would take for them to convict. /end

 

 

 

NEW – More behind-the-scenes jockeying from Mueller in the mystery grand jury subpoena fight we’ve been following that’s headed for a closed-door oral argument in the US Court of Appeals DC Circuit on Dec. 14.

The hidden case is back.  (Daily Check-In 11/23/2018) 18-3071, set for oral arguments on December 14th.

There’s been some theories as to whom is on the receiving end of this case, but I’d like to throw a new name out.

Mike Pence.

If it were Trump, he probably would have tweeted about it by now, or talked about this case in an interview.  It’s possible that he’s staying quiet on this because of how important it is.  And, given how it’s being handled, this has to be a big fish.  How many other big fish are left with direct White House ties?

Fuck, why did I ask that question.  There’s Pence, Trump, Kushner, Kremlin Barbie, McGahn, Flood, the secretaries, and a bunch of other people. But the biggest fish left are Trump and Pence.  Especially in a fight against a subpoena.

Pence has been quiet since this all began.  Very quiet.  Almost too quiet.  And considering how much he’s tied into the mess with Flynn and Manafort, he should be very nervous.

I still think it’s Trump, but don’t forget about Pence.

 

COHEN, NEW YORK, AND THE OTHER LAWSUITS

Epstein

 

1MDB

 

Emoluments

 

Stormy

 

TRUMP THE RUSSIAN ASSET

G-20

 

TRUMP VS MILITARY

 

TRAITOR TOTS

 

FIGHTING BACK

 

RIGHT WING TERRORISM & WHITE NATIONALISM

 

KHASHOGGI & SAUDI ARABIA

 

IMMIGRATION

 

SCOTUS & COURTS

 

#METOO & WOMEN’S RIGHTS

 

COLD WAR 2.0

Ukraine

 

Iran

 

Israel

 

 

#NEVERAGAIN

 

FIXING THE INTERNET

 

THE PROPAGANDA MACHINE

 

 

TRADE WAR, HEALTH CARE, & ECONOMY

 

GOP: THE PARTY OF LINCOLN IS DEAD

 

CRIME AND PUNISHMENT

 

PRIESTS & RELIGION

 

ENVIRONMENT & SCIENCE

 

CONGRESS

 

ELECTIONS

Wisconsin

 

North Carolina

 

 

 

THINKING AHEAD

Okay. I wanna say something about this obsession with rural white America. This is gonna be a thread.

I worked in Marion and Mahaska counties in Iowa as a Field Organizer in 2016. My job was to organize rural Democrats to get out the vote. It meant speaking to a TON of rural white voters. The two counties together have a population of about 50,000, with the biggest town at 11k.

These are exactly the voters Bernie and his supporters keep saying we should reach, that we are failing without reaching them. And, they propose, consistently, that the “pain and suffering” of these rural counties is economic.

That’s the drumbeat of the Bernie movement, essentially: “It’s the economy, stupid.” We’re leaving the rural white voting population behind because we’ve been alienating them by talking about social issues all the time and not how we’re going to help them economically.

In my experience, talking and working with rural voters every. single. day from July 2016 to November 2016? They aren’t that concerned about the economy and losing their farms, at least not where federal elections are concerned.

You’d think if the problem was economic, that’d be cited as a reason for reluctance to vote for Hillary, that there would be a clearer divide. That the narrative being imposed upon rural whites by a coastal elite (Bernie) that their concern is economic would ring true.

Nope. I was told that they weren’t voting for Hillary because she’s a woman, because they don’t trust women to lead, because she leaned too far into being pro-choice, that they disagreed with Dems on social issues.

I got asked why I was in favor of killing babies and told by a rural farmer with a disabled daughter that he was worried about “them Mexicans at the border.”

No one talked about the farm bills. When the economy was brought up, it was with a favorable view to Dems, as Dems had brought wind power to the state and provided a new industry.

My mom consistent volunteers were rural lesbians and queer people. Social issues were what people wanted to talk about on the doors, not the economy. I simply didn’t see Bernie’s narrative reflected on the ground.

And I don’t know about you, but I’d much rather keep those firebrand lesbians in the party than try to sacrifice them to court the racist old white farmer who won’t vote for anyone but a white man regardless.

(sorry for the typos. I just woke up and haven’t had my coffee yet).

 

 

PROGRESS IS PROGRESS

Puff, Puff, Pass

 

Medicare for All

In my on-boarding to Congress, I get to pick my insurance plan. As a waitress, I had to pay more than TWICE what I’d pay as a member of Congress. It’s frustrating that Congressmembers would deny other people affordability that they themselves enjoy. Time for #MedicareForAll.

Also, pretty sure one Dante’s Circles of Hell includes scrolling through a mirror-hall of agonizingly similar healthcare plans like “UHG Choice Master HMO 1800” vs “RedGo Option Plus EPO 2000.” I don’t know one normal person in this country that actually enjoys open enrollment.

People don’t want overly complicated choice between pricey, low-quality plans. We want an affordable solution that covers our needs, like the rest of the modern world. Medicare for All: – Single-payer system – Covers physical, mental, & dental care – 0 due *at point of service*

 

GEORGE H.W. BUSH

Listen people the Bush family are not our friends. Don’t get so salty with critiques of a president who helped destabilize the Middle East & empower the modern GOP. They’re a garbage barge imperialist stain on this country.

The reactions to this post are the strangest thing about the Trump era IMO. Everyone forgets *how terrible* the Bush family was/are. Trump is terrible too! Both things can be true.

If you’re a person who thinks the Bush family is good or was good or is somehow exempt from historical criticism then yes you should unfollow me. Do some reading or some remembering. The world is the way it is now largely Bc of them.

Ten years ago all you haters were saying GWB was the worst president of all time, and fifteen years before that how lucky we were to be rid of the Reagan/Bush evil empire. Come back to reality plz.

Now come the hagiographies & the wishful delusions that if only we had a man who gave use Willie Horton/Clarence Thomas/Middle East destabilization/Saudi extremism & more we’d be A-Ok. It’s so disingenuous.

The only thing I’m interested in is the truth & I don’t care how uncomfortable that makes anyone. One reason we’re in this mess in the first place is bc very few people are willing to have an honest conversation.

Here’s the thing with 41…

I don’t like him.  I never really liked him, but he was the least despicable Republican President of my life.  That’s a pretty short list, but I’d put him as the least hated.  I’m not in mourning, but I didn’t celebrate his death like I did with Reagan, either.  With Ronnie, I wasn’t going to go out at all that night until I saw his death announced on the news.  Just like how he tried to kill the unions in this country, I tried to kill a dozen beers that night.  With 41, I might look back more fondly on him if his son wasn’t also President.

 

IN OTHER NEWS…

 

RUMOR MILL

“WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service. It has encouraged its followers to find jobs at CIA in order to obtain intelligence. It directed Chelsea Manning in her theft of specific secret information …”

“And it overwhelmingly focuses on the United States, while seeking support from anti-democratic countries and organizations. It is time to call out WikiLeaks for what it really is – a non-state hostile intelligence service often abetted by state actors like Russia….”

“In January of this year, our Intelligence Community determined that Russian military intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained through cyber operations against the Democratic National Committee….”

“And the report also found that Russia’s primary propaganda outlet, RT, has actively collaborated with WikiLeaks.” — Mike Pompeo, 13 APR 2017

Translation (c/o Trump’s *OWN* D/CIA and now SECSTATE): Wikileaks = GRU. GRU is Putin’s rancid, murderous MI service. IC knows it. Mueller & OSC know it. If you collaborated with WikiLeaks in 2016 to get HRC/DRC’s stolen emails, you were working with GRU. That simple, folks.

 

That’s it for the last few days.  I’m wondering what will happen on Tuesday with Flynn’s sentencing.  I wouldn’t be surprised if it gets delayed again, but I’m optimistic that this time it will include some specifics, and that he’ll go to jail.  The only way he doesn’t go to jail is if he flipped on someone bigger than him, and there’s not many above him in the food chain.

Also, a little spoiler for Tuesday’s post, but Epstein settled out of court at the last minute.  Shit.  I was looking forward to everything this could bring.  I hope that more attention is given to this case, and that the women will finally get their say in court.

 

Thank you, and have a good one.

 

“Without Journalists, it’s just propaganda.”

– Katy Tur

Published by noneofthisisnormal

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