Thursday, August 18, 2022

McCarthy makes another good point

The Mar-a-Lago Affidavit Circus 
 One of the many oddities of the Mar-a-Lago search is that it comes in the middle of a criminal investigation (I would say, a number of criminal investigations) to which it may be relevant. In a normal criminal case, the government will wait to execute search warrants until it is ready to end the investigative phase by arresting and charging people. If it has probable cause to get a search warrant, the government nearly always has probable cause for an arrest warrant, too. In fact, quite often the same affidavit is filed to support arrest warrants and search warrants. Investigators would rather wait until the end of their probe to seek both, because investigations are best done in secrecy, without tipping off suspects while evidence is still being covertly gathered. Once suspects know they are under investigation, police and prosecutors worry, they might destroy evidence, work on getting their story straight (which could undermine later interviews), and perhaps even flee.

So one of two things exist here. 

  • The DOJ had an arrest warrant on Trump but have not executed it as of yet.
  • The DOJ has no arrest warrant and again are doing things spectacularity outside of the norms.  

The former would sort of surprise me. the DOJ has a policy to make any sort of move that could be seen as political within 90 days of an election. The raid in question came 91 days before the election. Why would they decide that the raid was so important as to not wait, but the fact that they had evidence to arrest Trump was not? An arrest 91 days before an election would be a shock, but it would be within their policy. 

But not arresting him (if they had a warrant to do so) would almost seem like they would be bending over backwards to go out of their way to not follow normal procedure in order to not appear political. Would the Biden/Garland DOJ go to an extra length not to follow normal protocol on something this important? Would they do this to cover for Trump and the GOP?

Moreover I find it utterly unbelievable that the DOJ could sit on an arrest warrant against the former President and not have that information leaked. More likely than not there was just a search warrant with no arrest warrant... and the DOJ just undercut their own protocol to make a massive raid on the last day that they are allowed to (under their policy).

Congress is not the guardian or babysitter of the Executive and the Executive is not the daddy overseeing Congress....

They are equal branches of the system and each is entitled to their own powers and this separation is explained vividly in the Constitution

Funny how it works. For eight years, Obama treated Congress like children who were beneath him. If they did not do what he wanted, well he had that pen to sign executive orders (many of which were overturned by the courts). He was the boss. He was everyone's daddy! Everyone should bow down! 

But then Donald Trump became President and suddenly the same people who supported Obama's treatment of Congress were suddenly convinced that Chuck Schumer was the daddy and Nancy Pelosi was the mommy and that they had an obligation to oversee and babysit the chief executive. 

The reality is that neither opinion is correct. The President is not in charge of Congress and Congress is not in charge of the Executive branch. They are co-equal branches (along with the judiciary) as set up by the constitution. You know... the document that everyone should have read to graduate from High School?

Wednesday, August 17, 2022

Yes - the President can "wave his hand" and declassify something...

As has been argued in the past the President of the United States many times cannot wait for cumbersome procedures to be followed to view classified information outside of the White House or to show classified information to someone on an immediate need to see basis. 

Jim contends that the law says “there has to be a legal record of the declassification — a verbal ‘standing order’ doesn’t cut it.” If Congress steps into the breach to regulate procedures for declassifying intelligence (or at least tries to — more on that momentarily), one would hope that lawmakers would prescribe formal, written memorialization requirements such as the ones Jim has suggested already exist. Jim derives his claim from a Trump-era (of course!) Second Circuit case, New York Times v. CIA. But that case presents a very different situation from the one Trump finds himself in now.
The Times and its reporter, Matthew Rosenberg, were claiming declassification by implication. They contended that through a tweet and other public statements acknowledging a presumably classified program (specifically, our government’s support for the “moderate” Syrian rebels opposed to Bashar al-Assad), Trump had effectively, if inadvertently, declassified the existence of the program, such that the government should not be heard to claim that it was shielded from Freedom of Information Act disclosure because it was classified.
By contrast, in the case of the material the FBI took from Mar-a-Lago, we are dealing with the government’s principal declassification authority: the president. Trump is not claiming that he declassified this information by implication, but that he did so by explication.

So this is sort of the opposite argument. The Times wanted to suggest that Trump declassified something by implication and therefore that information was no longer shielded from FOIA. In other words, when it fit their purpose, they wanted Trump to have the power to declassify information almost by mistake. So they could then see that information under FOIA. They justifiably lost that court case. 

Now the same people are arguing that Presidents really do not have an authority to declassify (as it no longer fits their purpose) unless they go through some sort of paper trail procedure where boxes are checked and initials are garnered (making the false implication that this was the ruling on the previous court case).

The hypocrisy of the argument is astounding.  Their argument ignores the basic fact that Trump never suggested that a tweet was declassifying anything. But he was suggesting there was an explicit standing order to declassify things that he needed to view at Mar-a-Lago. 

As McCarthy explains:

Trump, who was undoubtedly authorized to declassify intelligence, is saying that, while he was president, he personally declassified the intelligence in dispute. There is no law prescribing the minimum that the president must do in order to effect declassification. The directive on which the Second Circuit relied in finding that agency declassification procedures had not been followed in Times v. CIA was an executive order (EO 13,256), not a statute. It bound (and binds) the president’s subordinate executive officials and agencies, but not the president himself; he is bound only by the Constitution.
Basically, since World War II, presidents have assumed plenary authority over classification, citing their constitutional powers as commander-in-chief and chief executive. In past dicta, the Supreme Court has appeared to endorse this arrangement. For example, as CRS notes, in Navy v. Egan (1988), the Court observed that the president’s “authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”

So yes, according to McCarthy and Supreme Court Precedent the authority over classification is plenary (absolute). Moreover, there is no laws that suggests that any particular procedure needs to be followed or paperwork needs to be filled out by a President for him to view it or have it in his possession.

Furthermore McCarthy points out that if Trump had previously been able to take classified documents to Mar-a-Lago and declassify them as a rule, then he very likely believed that the documents that had been in his home was similarly declassified. This would go to intent, even if the DOJ believed that the documents were not declassified. 

Could the government prove beyond a reasonable doubt that he intentionally possessed classified information in an unauthorized place, given that he previously had the authority to declassify that information, he says he exercised that authority, and he might well believe that whatever he did to effect declassification was sufficient?

Now of course, there is an argument that Biden could have somehow "reclassified" the same documents that Trump declassified, and thus created a crime. But that would hardly be the sort of argument that any "reasonable prosecutor" would make. 

The left's obsession with the 2020 election...

They cannot talk about what is happening now, so they apparently want to continue to bring up 2020

The NYT decided (once again) that they will tell us what is wrong with the Republican Party. As if they are the Party with issues.

And guess what? Apparently it is the fact that the Party as a whole are made up of "election deniers" and that those (like Liz Cheney) who voted to impeach Donald Trump have been cast aside. According to the NYT, the real Republicans are actually people like Bill Kristol who currently votes for Democrats, pushes liberal policies, and talks non-stop about Trump and last election. 

I guess that makes sense to the NYT, huh? 

That true Republicans should vote for and act like Democrats?

The silliest thing about all of this is the various "names" the left has come up with to describe anyone who questions the Democrat and MSM assertion that the 2020 was the most secure and fairest election ever! If you happen to wonder why Fulton county reported 17,000 more votes to the SOS than they physically counted and that makes you the "denier". As in the "election denier".  

Does this mean they do not think you believe in elections, perhaps like you no longer believe in the Easter bunny?  I don't know, but apparently this is the name they have settled on.

Ironically, the entire idea of the name calling is to shame people into "not" talking about known issues regarding fraud. Don't talk about the audits showing tens of thousands of questionably counted ballots in Arizona. Don't bring up the Wisconsin Supreme Court decision that validated Trump's original concerns there. Don't bring up statistical anomalies such as a few thousand missing votes or one county having a 50% increase in voter turnout, but only for one candidate. Don't bring up ballot harvesting, ballot curing, and for gods sake don't cite how many people have been arrested in election fraud cases. 

In fact don't question anything election related. Because if you do, the left will cover their collective ears and go "la la la la la" really loud to drown out your voice. I've seen it! 

In other words, they will "deny" that any of that happened and then call you the "denier" in the process. I guess that is the grown up manner in which true Republicans should act as well. An insistence that you are so right that you should call everyone who disagrees a silly name.

But apparently that IS the problem with the GOP right now.  At least according to the NYT. 

Tuesday, August 16, 2022

Cheney loses? Go figure!

Already called by the Decision Desk 

99% in - Hageman 66.3 / Cheney 28.9 - How humiliating!

This was a pretty dang quick call. Only 9% in and they already feel comfortable calling the race for Hageman. I guess the idea that democrats would cross over and save Cheney ended up not panning out, huh? 

Speaking of egg on faces!

Yes... the FBI did take Donald Trump's passports! How many in the liberal press demanded that Trump was lying?

The breaking down of the Jan 6th gaslight

Let's start with the underlying opinions of the nation - according to polling

  • Polling - around 50% of the public believes election fraud altered the results of the 2020 election.
  • Polling - around 50% of the public believes that the events of Jan 6th constitutes an coup or an insurrection.
So technically the nation is fairly split down the middle on the two main issues surrounding the 2020 election and the Jan 6th rally/protest/riot/insurrection. About half believe that there was very real fraud. The other half believes that this was the most secure election ever. About half believes that Jan 6th was an attempt to overthrow the Government. About half think it was either a protest or a protest turned riot. 

Given the pretense that about half the country believes that election fraud altered the results and about 80 million or so believe that pretty strongly, there is good reason to believe that the bulk of the 60,000 so people who came to DC on Jan 6th were there in protest of the certification of the results (that they felt were corrupt). Many attended the actual rally and many others attended other gatherings across the city.

Of those 60,000 only a few thousand started the march to the actual capital. Of those who marched to the capital only a few hundred actually entered the capital ground and only a subset of those entered the building. Of those who entered the building only a small portion of those actually did anything other than walk through. 

So over the next several months the| Biden DOJ and FBI has gone through all of the video that they could find and arrested everyone they could identify who was in the Capitol building or even on the Capitol grounds. To date (nearly 19 months later) that number has stalled out at around 850 people. 

850 people arrested. Out of tens of thousands.

Of those 850 or so the main charges are entering a restricted building, Disorderly Conduct (generally added on top of the entering a restricted building), or Parading (carrying a sign outside of the building - but on the grounds).  You can go through the charges and see there appears to be less than 300 total charges that include something violent. But violent in this case can include something as subtle as shoving or pushing. 

Only 250-300 or so charged with a violent crime. Many for pushing or shoving.

Meanwhile the recent Crimson Harvard study concluded that over 90% of those arrested, charged, and punished over the events of Jan 6th were there to simply protest the results. Less than 10% said they were there to actually take any actions to prevent the certification of the votes. That is not 10% of the 60,000. That is less than 10% of the 415 or so who have plead out or were convicted and were interviewed for the Crimson Harvard study.. 

IOW... the actual number of people there to execute the insurrection was about three dozen.

So you start with 60,000 people and at the end of the day you have about 250-300 people charged with a violent act (many only charged with pushing or shoving) and only about three dozen who had any intention of anything remotely resembling a coup or insurrection.

However, you do have judges sentencing people who were just carrying signs to jail time. You have judges demanding that defendants disavow their belief that there was election fraud. You have had three suicides from people who were sentenced to as many as three years for something an Antifa member would not even get a second glance for doing. 

So here is my question. What "real" evidence is there that there was a coup or insurrection? They can overcharge people all they want. They oversentence them all they want. That doesn't change the fact that out of 60,000 people who rode into town, they have found a grand whopping total of about three dozen who were there to do what the media and Democrats demand was driving all 60,000. 

Three dozen people does not make an insurrection or a coup. Saying such is ridiculous. Demanding that the former President need to be charges for some sort of assist in planning this non-coup coup is even more ridiculous. 

But yet... that is the gaslighting that is being sold. We have millions who have fallen for it.

A promising political career comes crashing down...

Cheney braces for loss
CHEYENNE, Wyo. (AP) — Wyoming Rep. Liz Cheney, a leader in the Republican resistance to former President Donald Trump, is fighting to save her seat in the U.S. House on Tuesday as voters weigh in on the direction of the GOP. Cheney’s team is bracing for a loss against a Trump-backed challenger in the state in which he won by the largest of margins during the 2020 campaign.
Win or lose, the 56-year-old daughter of a vice president is vowing to remain in national politics as she contemplates a 2024 presidential bid. But in the short term, Cheney is facing a dire threat from Republican opponent Harriet Hageman, a Cheyenne ranching industry attorney who has harnessed the full fury of the Trump movement in her bid to expel Cheney from the House.
“I’m still hopeful that the polling numbers are wrong,” said Landon Brown, a Wyoming state representative and vocal Cheney ally. “It’ll be a crying shame really if she does lose. It shows just how much of a stranglehold that Donald Trump has on the Republican Party.”

Liz Cheney had a bright future in the GOP just a few years go. In fact, it would not have been hard to imagine her making a legitimate run at the 2024 GOP Presidential nomination. But then she did what many promising candidate become. A one issue politicians. A politician driven solely by one thing, providing next to zero energy on anything else. A politician who becomes so obsessed with something that nothing else matters. 

This became the undoing of people like Al Gore, who went from almost winning the Presidency to talking about global warming, global warming, global warming... and nothing else. Well until global warming became climate change. Then he started to talk about climate change and nothing else. Al Gore has not run for another office after coming a few hundred votes short of being the President. Largely because he can no longer be taken seriously as a politician. He is now just an obsessed man with a passion for one issue.

But Liz Cheney's obsession is unhealthy and largely irrelevant. Al Gore started talking about his cause over 20 years ago. Is still talking about it. Will still talk about it for years to come. Liz Cheney's cause is going to be yesterday's news and will not matter one way or the other in the near future. Sure Trump could run and win in 2024? But what does Cheney do with herself after 2028? Spend the rest of her life showing how much she still hates Trump? 

There is speculation that Cheney might throw her hat in the ring in 2024. However, it is said she has no interest (at least now) of being a third party candidate. Her intent would be to enter the GOP primary and go up against Trump head to head. More to the point, if she runs as a third party candidate, she likely siphons more off votes from the Democratic candidate than she would from Trump. 99% of your never-Trumpers voted for Hillary anyways. A Cheney third Party run would likely pull most of those never-Trumpers into the Cheney fold and she would pull in almost no other Republicans who are interested in winning.  

Monday, August 15, 2022

Took a while, but Walker finally ahead in a Georgia Poll...

This tracking poll once had Warnock at 50% 

Now obviously Walker is behind slightly in the overall polling averages at RCP and other places. But even in those polling averages, Warnock (the incumbent) is struggling to make it much higher than 47%.  On the flipside Warnock has the advantage of complete outlier polls showing him up by as many as nine points (he won't win by nine points). 

So yes... this is just a single poll amongst many. 

All that being said, I have always been a big fan of "tracking polls" as they generally show movement in ways other pollsters (who are polling maybe once a month) cannot track. So many variables can explain a swing between two polls taken weeks apart (most swings due to who who ends up in the sample). 

But a tracking poll generally moves fairly slow as these tracking polls are polling the same overall subset of people on a consistent basis.  So when you see movement, it is generally due to people actually changing their minds... rather than just randomly getting a new sample that happens to be better or worse for a particular candidate than the last sample. 

In this case, at least a good portion of the polling is the same sample of respondents that previously had Warnock at 50%.  To see a drop of about six points in a tracking poll is a big deal. A much bigger deal than a six point drop in a general media poll. 

Another point of hypocrisy? Bush and Obama exempted themselves from declassification protocols.

Arguments ad nauseum about how Trump did not follow proper declassification techniques fall in line with the classic "what is good for every other President is not okay for Trump". 

Other presidents have asserted exemptions from declassification authority. An order by former President George W. Bush stated such an exemption for “information originated” by a president. That order was reaffirmed by former President Obama in Executive Order 13526 in 2009 and expressly exempts presidents, vice presidents, their staffs and “other entities within the Executive Office of the President.”
If that standing declassification order existed, it ended with his presidency, of course. However, it still existed when these boxes were taken to the resort. There may also be complicating logistics for investigators: If the documents were taken out of the White House on the last day of his presidency, the classification markings on the cover pages and internal headings might not have been crossed out.
There has never been litigation on the scope of this exemption or a president’s declassification authority. Nor is it clear whether any standing order was disclosed to the judge who approved the FBI’s warrant — but it could create a threshold legal challenge to a criminal charge.

So apparently the two Presidents directly preceding Trump also exempted themselves from having to go through the declassification process. In fact, the Bush EO was "reaffirmed" by the Obama EO 13526. Unless Trump specifically overturned the Obama EO on the subject, the rules would have been put in place by Obama. Trump probably needed to do nothing other than follow these previous Presidential orders.  

That being said, he is claiming to have a standing order to declassify materials he took to Mar-a-Lago. While this has been universally denounced by many Trump haters, it would likely not be much different in scope to how other Presidents handling classified materials. Given the amount of time Presidents spend at their residence or at Camp David or any number of places. The idea that they could do their job as President while only viewing classified information within the White House is hard to fathom. How else could they do their jobs (view classified information) at alternate location without the express ability to declassify those documents to view at other locations? The concept that Trump refers to seems logical and necessary, not corrupt and nefarious (as is being described).

I get the sense that most of this stems from the lefts refusal to see Donald Trump as a legitimate President. The idea of Obama declassifying information and taking it somewhere to work with it does not bother them because in their minds he could be trusted with that authority. The fact that he took more materials with him when he left office than any other recent President should not be questioned, because (again) he could be trusted in those regards.  In their minds, the idea that Trump is entitled to that same authority or given the same trust is not really an acceptable standard or even an acceptable argument. He might have been a President, but not a real President like Obama and therefore cannot be given the same benefit of the doubt.