Mark Meadows Playing Stupid Games With 1/6 Committee Subpoena, Again, Will Win Stupid Prizes

Last week, former White House Chief of Staff Mark Meadows announced a tentative deal to provide testimony to the House January 6 Select Committee. Even at the time it sounded shaky, with Committee Chair Bennie Thompson promising that "[t]he committee will continue to assess his degree of compliance with our subpoena after the deposition."

But excerpts of Meadows's book are dropping, and the Old Man is apparently PISSED about his little buddy spilling the beans on Trump's pre-debate COVID diagnosis. So now it's time to make a big show of flouncing out and standing up for the Dear Leader.

"Yet again, with the breadth of its subpoenas and its pugnacious approach, the Select Committee has made clear that it does not intend to respect these important constitutional limits," Meadows's attorney George Terwilliger III said in a letter announcing his client's intent to withdraw from the deal.

The two sides couldn't even agree whether Meadows would be appearing "voluntarily" or under subpoena, a distinction which matters because he couldn't be compelled to answer questions in a voluntary appearance. If, however, he appeared under subpoena, he couldn't just refuse to answer citing "the advice of counsel." He'd have to make a specific claim of privilege, and the expansive interpretation of executive privilege asserted by some weirdo in Florida, encompassing conversations Meadows had with people outside the executive branch, was never going to cut it.

"In short, we now have every indication from the information supplied to us last Friday — upon which Mr. Meadows could expect to be questioned — that the Select Committee has no intention of respecting boundaries concerning Executive Privilege," Terwilliger huffed.

Meadows is also bigly mad that the committee subpoenaed his phone records "without regard to either the broad breadth of the information sought, which would include intensely personal communications of no moment to any legitimate matters of interest to the Select Committee, nor to the potentially privileged status of the information demanded." Also Chair Thompson went on Maddow last night and said that pleading the Fifth, as Jeffrey Clark and John Eastman have announced they intend to do, is an implicit acknowledgment of potential criminal liability. Which has nothing whatsoever to do with Meadows's case, but shine on you noisy diamond.

It's not clear now whether Meadows will go full Bannon and just refuse to show up, all but daring the Select Committee to refer him to the Justice Department for prosecution. The letter is perhaps deliberately hazy on this point, saying "we now must decline the opportunity to appear voluntarily for a deposition," as if that offer was ever on the table.

Meadows may have difficulty claiming that he can't show up at all because he's "precluded from making a unilateral decision to waive Executive Privilege claims asserted by the former president." First of all, he's run his mouth in the book about his time in the White House, and so he's in no position to claim that everything he saw and heard there is presumptively privileged. And second, his prior agreement to appear demonstrates that he knows the committee has some questions on topics which are not covered by any plausible invocation of privilege. So he's hardly in a position to refuse to show up on the grounds that none of the queries are legit.

Big props for running Trump's play though. The former president tried the snapback invocation of privilege, arguing that he wouldn't sue to invoke executive privilege as to the testimony of former (acting) Attorney General Jeffrey Rosen and other top DOJ officials, unless the Committee issued further subpoenas — because apparently their testimony became magically privileged if the invocation could be used as a sword to beat back further inquiry.

In summary and in conclusion, sometimes you gotta ask yourself one question, "Do I feel lucky?"

Well, do ya, punk?

And HELLO, as we were typing, the Select Committee answered that question in this statement:

Even as we litigate privilege issues, the Select Committee has numerous questions for Mr. Meadows about records he has turned over to the Committee with no claim of privilege, which include real-time communications with many individuals as the events of January 6th unfolded. We also need to hear from him about voluminous official records stored in his personal phone and email accounts, which were required to be turned over to the National Archives in accordance with the Presidential Records Act.

Tomorrow’s deposition, which was scheduled at Mr. Meadows’s request, will go forward as planned. If indeed Mr. Meadows refuses to appear, the Select Committee will be left no choice but to advance contempt proceedings and recommend that the body in which Mr. Meadows once served refer him for criminal prosecution.

Oh, hey! Kinda sounds like they got his phone records and found a bunch of stuff he failed to turn over to the National Archives, huh?

Looks like someone's luck is about to run out.

[Politico / Terwilliger Letter]

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Keystone Coup Lawyer John Eastman Consults Constitutional Scholar Tucker Carlson

Coups 4 Dummies lawyer John Eastman has already announced his intention to plead the Fifth at his appearance before the House January 6 Select Committee. But with his fellow traveler Steve Bannon facing criminal contempt charges, Eastman may be getting a little nervous about his legal strategy. Perhaps that's why he booked himself a session with the world's preeminent constitutional lawyer for an on-air chat about congressional subpoena power.

Yep, that's right, he went on Tucker Carlson last night to shout some more about his intent to finally shut the hell up.

"Why comply?" demanded an outraged Carlson. "I mean, at this point, if it's totally fake, this is just Soviet show trial — which it is — then why would the rest of us have any kind of obligation to play along with it, honestly?"

"Well, we shouldn't," Eastman agreed. "But Congress has the power to issue [referrals for] criminal contempt. Normally those don't go anywhere in such charades as this. But the Department of Justice is fully in line. And you know they've already brought one criminal indictment against one of the people that refused to comply."

Indeed, Steve Bannon seems to be delighted to find himself the center of attention again.

Eastman goes on to complain about his phone records being subpoenaed from AT&T, which may or may not be an accurate description of what is happening here. In August, the Select Committee sent preservation letters to multiple platforms instructing them not to destroy evidence which might be subpoenaed at some future date. And Eastman is very sloppy in his characterization of these letters, which are definitely not subpoenas, and which do not result in the companies "turning these records over to Nancy Pelosi and Bennie Thompson," as Carlson describes it.

"There's no linkage to criminal activity that has occurred for how many hundreds of people on these subpoena lists that were sent to Verizon and AT&T and probably every other phone company in the country," Eastman whined. "There's no evidence at all, but they want to track Americans' thinking."

There are no subpoena lists with "many hundreds of people."

But Eastman claims that his own phone records have really been subpoenaed: "The phone companies I think would prefer not to comply, but, you know, they're going to be held in criminal contempt if they don't. So they have now forced me and my lawyers to work with some of these other people to file a court action to try and block these unbelievably expansive and unconstitutional subpoenas of our private records and communications."

If Eastman and "some of these other people" have actually filed suit to block the phone companies complying with congressional subpoenas, it hasn't appeared on the DC docket as yet. But Trumpland lawyer Cleta Mitchell, who got booted out of her firm job after it was revealed she'd sat in on Trump's infamous call with Georgia's secretary of state, has also had her communications subpoenaed, according to Carlson. Again, just to be clear, we don't know if these are subpoenas or preservation letters. And neither does Tucker Carlson.

"I guess we shouldn't be surprised," Eastman howled. "This group that wants to advance a Soviet, communist-style agenda, we shouldn't be surprised that they're using Soviet, Stalinist tactics to do it."

LOL, remember when Republicans wanted to LOCK HER UP Hillary Clinton because she had the temerity to delete her own personal emails off her server?


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DC National Guard Commanders Aren’t Going To Let Mike Flynn’s Brother Pin This Sh*t On Them

Former DC National Guard leaders are coming out swinging against a November 16 Inspector General Report that appeared to exonerate top Army staff and blame the slow deployment of guardsmen to the Capitol on January 6 on DCNG commanders. Politico got its hands on a memo written by Army Colonel Earl G. Matthews summarizing his own recollections of the day and those of Major General (Retired) William J. Walker, U.S. Army, who served as commanding general of the DCNG, and it is blistering.

Matthews begins: "The purpose of this memorandum is to outline and detail the myriad inaccuracies, false or misleading statements, or examples of faulty analysis contained in a recent publicly released Department of Defense Inspector General (DoDIG) report of its investigation into the Department of Defense’s actions leading up to and in response to the violent assault on the U.S. Capitol which occurred on 6 January 2021." He then tears into the IG for relying on anonymous, self-serving accounts, full of obvious contradictions, to produce a report "replete with factual inaccuracies, discrepancies and faulty analysis" resting on "demonstrably false testimony or statements."

Walker and Matthews say they begged to deploy the National Guard troops from 2:30 in the afternoon on. According to Walker, who is now the House Sergeant at Arms, the IG Report incorrectly states that Army Secretary Ryan McCarthy and Mayor Muriel Bowser were on that call, but they were not

McCarthy has said he authorized the DCNG to deploy within the hour. But this memo tells a different story, much more like the one Walker told Congress way back in March. It recounts that Mike Flynn's brother Gen. Charles Flynn, who served as deputy chief of staff for operations on Jan. 6, and Lt. Gen. Walter Piatt, the director of Army staff, were against deploying the guard because of "optics," and counseled Walker to have the guardsmen replace DC cops directing traffic so that only DC police would respond to the riot.

LTG Piatt stated that it would not be his best military advice to recommend to the Secretary of the Army that the D.C. National Guard be allowed to deploy to the Capitol at that time. LTG Piatt stated that the presence of uniformed military personnel could inflame the situation and that the police were best suited to handle the situation. Both LTGs Piatt and Flynn stated that the optics of having uniformed military personnel deployed to the U.S. Capitol would not be good.

Chief Contee then stated that he would inform the Mayor (D.C. Mayor Muriel Bowser) that the Army was refusing to send the National Guard to the Capitol and that he would ask her to convene a press conference to make this refusal known. LTG Piatt then asked Chief Contee to please not do this. Piatt stated that the request for Guard presence was not being refused and he had no power to deny or approve the request, only that he would not recommend approval to his civilian leadership. Piatt and Flynn recommended that Contee identify locations away from the Capitol where D.C. National Guard personnel could relieve MPD personnel of traffic duties, allowing more MPD personnel to surge to the Capitol.

Your Wonkette is not qualified to opine on military deployment, but we'd note that the DCNG was in fact trained and equipped to put down a riot. And according to Walker and Matthews, the DCNG guys were kitted out in riot year and ready to leave the Armory on 30 minutes notice from the time of the original 2:30 call. So Walker and Matthews were positively incensed that Flynn and Piatt testified that the DCNG was so incompetent that it needed some Army guys to come and hold their hands and lead them over to the Capitol building.

In his sworn testimony, Flynn claims, a team under his direction of “40 officers and noncommissioned officers, immediately worked to recall the 154 D.C. National Guard personnel from their current missions, reorganize them, reacquaint them, and begin to redeploy them to the Capitol.” Flynn’s sworn statement is so astounding on its face that it defies reason. If it does not constitute the willful and deliberate misleading of Congress, than nothing does. Flynn was referring to 154 D.C. Guardsmen who were already on duty, were trained in civil disturbance response, already had area familiarization with Washington, DC, were properly kitted and were delayed only because of inaction and inertia at the Pentagon. Why would the DCNG need the assistance of “40 officers and noncommisioned officers” from the Army Staff to “organize and acquaint” these Guardsmen?

In fact, the memo states that the DCNG was left sitting in its buses waiting to deploy while Army Secretary Ryan McCarthy developed "a plan" for the guardsmen and got it approved by acting Defense Secretary Christopher Miller.

Adding insult to injury, the army witnesses allege Walker got his order to deploy at 4:35, but that the order had to be reissued at 5 p.m., during a press conference McCarthy had with DC Mayor Bowser. Walker and Matthews insist they never got any call at 4:35 telling them to move out.

The DoDIG timeline states that at 4:35 PM Secretary McCarthy called MG Walker to inform him that Acting Secretary of Defense Miller had approved the DCNG request to re-mission the DCNG to support the U.S. Capitol Police at the Capitol. MG Walker denies that Secretary McCarthy called him at 4:35PM or that any such discussion took place at that time. As he stated in sworn testimony, MG Walker became aware of the approval to deploy DCNG personnel during a video teleconference with senior Army officials at 5:08 PM. The decision of civilian leadership was conveyed by the CSA, General James McConville. The DoDIG timeline also states the McCarthy had to “reissue” his direction for the DCNG to move to the Capitol at 5PM. This is an outrageous assertion given that Walker would have began deploying DCNG to the Capitol when he first received USCP Chief Steve Sund’s urgent requests if he had been given authority to do so. The notion that MG Walker had to be told twice to deploy forces to the Capitol is as insulting as it is false.

We may never get a full and complete accounting of what went on that terrible day, but Walker and Matthews aren't the first to note glaring discrepancies in the military's version of events. Over at Just Security, editors Kate Brannen and Ryan Goodman noted contradictions and gaps in the record back in May. And, as Matthews points out, the DOD IG appears to have relied on "some of the same 'Army witnesses' who, according to open press reporting, repeatedly and strenuously denied to the press for days that Flynn was even a participant on the 2:30PM conference call which occurred on 6 January."

And so he can hardly be blamed for calling out Flynn and Piatt for alleged "perjured testimony" and describing them as "absolute and unmitigated liars" for their efforts to cast him as incompetent and leave him holding the bag.

It's ugly, whichever way you look at it.

[Politico / Memo]

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Trump Admits To Obstruction Of Justice. Again.

Love the smell of obstruction of justice in the morning!

Once again, Donald Trump has taken to the airwaves to confirm that he fired FBI Director James Comey four years ago to put an end to the investigation into Russian election interference. Just in case there was anyone who doubted it.

“Don’t forget, I fired Comey, had I not fired Comey you might not be talking about a beautiful book about four years in the White House, and we’ll see about the future, the future's going to be very interesting.” the former president told Fox News's Mark Levin, hawking his $75 White House photo album — or $229 for a signed copy your family will cherish forever CALL NOW!

"I fired Comey, that whole group, and now that group is coming back again?" he babbled. "I mean, it's not believable. It shouldn't be allowed to happen."

Did President Joe Biden fire Chris Wray and put James Comey back in charge of the FBI? What the hell is that old fool talking about?

In case that whole insane week in May 2017 isn't seared into your memory forever, Deputy Attorney General Rod Rosenstein cooked up a memo saying Comey had to go because he was too mean to Hillary Clinton. This came after Trump and his dipshit courtiers Stephen Miller and Jared Kushner drafted a "You're Fired" letter explicitly linking the dismissal to the Russia investigation, and White House Counsel Don McGahn lost his shit and told them to shut the hell up about it.

But Trump immediately undercut Rosenstein's post hoc justification by making a beeline for ABC's Lester Holt to explain that actually the dismissal was an attempt to undercut the Russia inquiry.

“In fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won,'" he boasted.

So it's not exactly a surprise that Trump is admitting once again, in case anyone forgot, that he fired James Comey to obstruct justice. Or as that asshole put it after an extended fulmination to Levin on the supposed Deep State, "If I didn’t fire Comey, they were looking to take down the President of the United States if I didn’t fire him. And some people said, 'He made a mistake when he fired Comey.' And now those same people said it was the most incredible, instinctual move that they've ever seen.'"

Great big men come up to him with tears in their eyes and say this all the time! They even call him "sir!"

Here on Planet Earth, if Trump hadn't fired Comey, he wouldn't have wound up with Robert Mueller being appointed special counsel and sticking his hand all the way up the ass end of Trumpland. Not for nothing, but the entire second volume of the Mueller Report was a detailed examination of the eleventy-seven ways Trump and his minions tried to obstruct the investigation. The entire administration was engulfed in this thing for two straight years, so if firing Comey was an "incredible, instinctual move," then Trump has all but admitted his instincts suck.

Which we already knew, because it gave us something to focus our rage on between 2017 and 2019 when Nancy Pelosi took back that speaker's gavel and we knew we were in the home stretch of that four-year nightmare.

But now it is 2021, and we are desperately trying to hang on to our majorities in the House and Senate. Democrats are trying to pass once-in-a-generation legislation to help people. We are literally giving people money — and not rich assholes who don't need it. So perhaps THE MOVE right now is not to work ourselves into a Mueller Merrick Comin' frenzy and demand that the Justice Department indict Trump for obstruction of justice based on his public admission of doing just that.

And perhaps the DOJ is investigating Trump for obstruction. Hell, it's all laid out in the Mueller Report where Mueller said he didn't think he could indict a sitting president, but handed them the evidence tied up in a neat bow should Congress decide to do its damn job (LOL). But as Marcy Wheeler points out, grand juries are secret, and we might not hear about a pending Trump indictment until right before it dropped.

Don't hold your breath, though, and don't waste it fighting yesterday's war. Because Mueller didn't save us. We saved ourselves, and we have to continue saving ourselves every damn day because the fascists are at the gate. So, yeah, we're all in favor of an obstruction indictment for Trump — if anyone earned it, it's that guy.

But also HOLY SHIT we're less than a year out from the midterms and we're clearly not going to pass voting rights legislation before then. In the meantime, the January 6 Select Committee is going balls to the wall to get to the bottom of that attempted coup. So, yeah, LOCK HIM UP for sure. And also, figure out what you can do to support congressional Democrats as they run into the 2022 wind.

FOCUS, people.

[MSNBC / Mediaite]

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LIVEBLOG: E. Jean Carroll Takes On Trump At The Second Circuit

It's fightin' Friday in New York as E. Jean Carroll goes another round with gross alleged rapist and former president Donald Trump. While in office, Trump ducked the process server like a deadbeat dad when Carroll sued him in state court. Then when she was just about to get discovery, including taking a DNA sample to match against male genetic material on the dress she says she wore the day of the assault all those years ago in a Bergdorf Goodman's dressing room, Bill Barr swooped in and tried to substitute the government as a defendant in the defamation case under the Federal Tort Claims Act.

And if you are wondering what the hell saying a woman is too grody to rape has to do with the job of presidenting, then you are in agreement with US District Judge Lewis Kaplan who ruled in October 2020 that the president is not an employee for purposes of the Federal Tort Claims Act, and even if he were, that this conduct would have been outside the scope of his employment. So the DOJ was out and Trump was back on the docket as the named defendant.

But then the government appealed. Yes, we know you all hate AG Merrick Garland — DOJ gonna DOJ.

That brings us to today, when the Justice Department is arguing at the Second Circuit to stay in the case as defendant, and Carroll's superstar attorneys at Kaplan, Hecker, & Fink, Joshua Matz and Roberta Kaplan will make the case that they were appropriately yeeted and should stay that way.

The case will be heard by a three judge panel consisting of Judge Denny Chin, a Clinton Obama appointee, Judge Guido Calabresi, another Clinton appointee, and Judge William Nardini, a Trump appointee. Fun fact: Judge Nardini, age 52, clerked for Judge Calabresi, age 89.

Okay, let's get it on! Hot liveblog action comin' at ya.

10:40 Mark Freeman for DOJ says he's not here to justify those "crude" comments about Carroll, but he was asked a question about the news.

Judge Chin (I think?) asks if ANY comment about the news is covered under the federal tort claims act.

Judge Calabresi asks what law determines whether it's within the scope of employment, speculates that it's DC local statute.

10:42 "Nonsense, nonsense!" thunders Judge Calabresi at the DOJ attorney, says that federal court decisions about DC employment law is just a guess.

Fun start!

10:45 Judge Calabresi: "Let me just be v blunt. Why shouldn't we do what we do in these cases, certify the questio to the courts of DC?"

(Remember that the Justice Department removed the case from state court to federal court under the Federal Tort Claims Act.)

Freeman says that public officials have to speak about public events, so it's a question of federal law, not DC law.

Calabresi is having exactly none of it.

10:50 Judge Calabresi: "It is up to local law to decide."

Freeman responds that the issue is whether the government can substitute itself as defendant under federal law. Calabresi counters that the issue is whether Trump saying he wouldn't rape Carroll because she "wouldn't be my first choice" was within the scope of employment under DC statute.

10:55 LOL, looks like Trump's regular lawyer Mark Kasowitz is out and this goofball lady from Bedminster, NJ is coming in for him. Her name is Alina Habba, and she's not exactly what you'd expect from a billionaire in federal appellate court. She's the one who demanded that the Pulitzer Committee withdraw the prizes for the Times and the Post because RUSSIA HOAX WITCH HUNT.

10:56 Judge Calabresi, in his lightly accented gentle voice, is still kicking the DOJ lawyer's ass on a relatively abstruse issue of scope of employment law. He's just posed a hypothetical in Posneria and Calabresia (for Judge Richard Posner and himself, lol).

"Neither lawyer nor court know much about tort law. Unfortunately you have someone who has spent 60 years teaching it."

11:00 Habba up: "This case is meritless."

Habba says that Trump isn't worried on his own account: "It is solely to protect the presidency as an institution."

Judge Nardini (I think) says this is a choice of law question, not about the power of the presidency.

Habba making the interesting choice to tell the judges they're wrong. Cool deal.

11:03 Habba takes the maximalist position that basically everything the president says is within the scope of employment.

The court asks her if Trump should have been considered an employee under the Westfall Act. Seems like kind of a superficial analysis, not a great tactic with Judge Calbresi, who is in love with weedsy analysis and is now going on about legislative history.

11:11 Habba is arguing that Westfall Act applies to the executive branch, and the president is part of the executive branch. The lower court held that he's above it.

Calabresi is envisioning a tort case arising out of golf game between the Presidents of US and France which goes awry. Did I mention he's 89?

Habba: "The president can be disciplined, if you look at President Trump, he gets disciplined a lot."

And lo, lightning did not strike her on the spot.

Habba goes on to attack Carroll, says she was "on the aggressor's side" by writing a book, so Trump had to comment in his own defense.

Judge Chin points out that Trump went way beyond denial to say "she's not my type," wonders how that's within the scope of employment.

Habba whiffs, badly IMO.

Judge Calabresi: "The problem is that you're discussing it with Judge Chin and you could be discussing it with me" then returns to saying "it's up to DC."

Judge Nardini presses Habba to come up with a hypothetical of something that would be outside the scope of employment. "What is the limiting principle you would propose?"

"Within the scope of DC law," Calabresi shouts.

Habba says that an unprovoked attack would be outside the scope, unlike here where Carroll "provoked" Trump.

Judge Nardini is walking her through it like a law student. "I don't understand the provocation point."

11:15 Habba says that Trump had to comment because it went to his fitness as a president.

Judge Calabresi says "that's an interesting argument that DC courts might accept."

Habba says that "Hillary Rodham Clinton used [this law] to keep her private servers private."

Habba: "When somebody says he did a heinous crime twenty years ago, he needs to address it."

Judge Calabresi: "You can't make me an argument that Congress should have not made this a state question."

11:21 Joshua Matz, for Carroll, begins with scope of employment. Says that conduct for private motives like "revenge or retaliation" is outside the scope of employment under DC law.

Man is he a good lawyer. He's the one who just won that case against the Charlottesville Nazis.

Matz rubbishes the "provocation test" Habba just put forward, argues that the DOJ is taking the opposite stance in Swalwell v. Brooks, in which it is currently arguing that under the FTCA Rep. Mo Brooks is not entitled to be defended by the federal government for his remarks at the January 6 insurrection rally. (I'll put links in the next time Judge Calabresi goes off on a tangent.)

11:25 Oh, boy. Here's that tangent on the bifurcation of tort law in America in the 40s. DRINK.

11:27 Judge Chin (I think) says that the test isn't really whether an employee's action "benefits" an employer anymore, refers to an employee at a laundromat who shoots someone on the premises. Judge Calabresi is talking about olde-timey bill collectors beating up debtors and "dirty dancing analysis."

11:32 Judge Nardini (I think) asks Matz to explain why his opponent is wrong when she argues (even poorly) that the president is constantly being asked to prove and comment on his fitness for office.

Matz is happy to let the DC Court certify the issue — i.e. decide whether Trump's comments were within the scope of employment — since that's clearly what Judge Calabresi wants.

Judge Calabresi: Suppose the president is awarding medals ... sees someone who insulted him, and as he puts the medal and chokes him. And maybe kills him. Is that within the scope of employment?

Matz says UH NO.

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Trump DOJ Lawyer Jeffrey Clark Lands It Like Hindenberg With Jan. 6 Committee

Turns out former Justice Department lawyer Jeffrey B. Clark is just as good at lawyering as he is at staging coups. By which we mean he is hilariously, breathtakingly incompetent, and we would dissolve into puddles of laughter if the future of American democracy weren't at stake.

Remember that Clark had that very good and well-thought-out plan to shiv his former mentor Jeffrey Rosen, then the (acting) Attorney General, and take his job. Rosen and his deputy Richard Donoghue had already said NFW to Clark's proposed letter to Georgia election officials claiming that the DOJ was investigating fraud in the state and thus the legislature should feel free to convene and give all the electoral votes to Donald Trump. But Clark had been whispering in the old man's orange ear behind his boss's back, and only threats by the entire senior leadership of the DOJ and White House Counsel's Office to resign en masse persuaded the president not to let Clark carry out his insane plot.

After the House January 6 Select Committee subpoenaed Clark, Rosen, and Donoghue in October, Trump's lawyer Doug Collins (yes, that guy) sent a bizarro letter saying that Trump wouldn't invoke executive privilege to stop them from testifying if the committee would simply agree not to call any more witnesses. Leave aside for the moment the issue of a former president invoking a privilege that belongs to the government and which has traditionally been understood to cover only the president's closest advisers. In no universe does a good faith privilege invocation function as a sword to beat back further inquiry, and there's no such thing as automatic backsies if preconditions aren't met. No, just no.

Once the DOJ said they weren't going to block the officials' testimony, Rosen, Donoghue, and the other Justice alums duly testified to both the Senate and House. But Clark, who may or may not have a lot more to fear than his erstwhile colleagues, took a different route. And that route was to grab the committee chair's gavel and beat himself over the head with it repeatedly.

After switching his representation to attorney Harry MacDougald, a Kraken alumnus, Clark persuaded the Select Committee to let him postpone his testimony to November 5. But on the day in question, he showed up with a 12-page letter making a generalized reference to various and sundry privileges and insisting that he could not possibly answer any questions on any topic at all. Nor would he be providing any subpoenaed documents. And although Trump hadn't specifically told him that he was invoking privilege, Clark was interpreting the conditionality in Collins's letter as an automatic edict of omertà.

Hilarity ensued, at least for legal bloggers who regard transcripts such as the one published last night by the Select Committee as manna from heaven.

"I would like to advise counsel and the committee that I delivered a letter to [Committee Counsel], which was addressed to Representative Thompson, on behalf of Mr. Clark that asserts executive privilege with respect to testimony and documents that have been subpoenaed from Mr. Clark," MacDougald began. "The grounds of our assertion are set forth in the letter. It is 12 pages. And, based on those objections, we do not intend to answer any questions or produce any documents today, but we have appeared in compliance with the subpoena in order to assert those objections, as opposed to just refusing to show up."

If MacDougald and Clark thought they could simply wave a sheaf of papers at the committee members and be on their merry way, they thought wrong.

Committee Counsel noted that they intended to ask questions far afield from any plausible invocation of privilege, and wondered if Clark intended to refuse to answer those as well.

"Yes. That is our position," MacDougald answered gamely. "And the reason for that is that the privileges that are under the overall umbrella of executive privilege are numerous, including Presidential communications. In addition, as a Department of Justice official, there is a law enforcement privilege, law enforcement investigation privilege. There are — there is a deliberative process privilege. There are any number, not to mention the attorney-client privilege. So all of these things are applicable in this context. I understand that's disputed by the committee."

Indeed, it was disputed by the Committee.

REP. ADAM SCHIFF: What privilege are you asserting would apply to enable you to refuse to answer a question about whether you used personal electronic devices in the course of your government business?

MacDOUGALD: We're asserting privileges set forth in the letter, Congressman.

REP. SCHIFF: And what privilege in particular, because you refer to a number of privileges? So, for this specific question — that is, whether Mr. Clark used personal devices to communicate government business — which specific privilege enables Mr. Clark to refuse to answer that question?

MacDOUGALD: Given the lack of specificity of the question, we can do no more than allude to the privileges that are asserted in the letter, which are the full panoply of executive, Federal law enforcement, and so on, privileges that are in the letter, and plus the reservation that we've made. So, you know, I — again, with respect, Congressman, we do not want to engage in a debate or a law school set of hypotheticals about this.

It bears pointing out that you can't just shout PRIVILEGE and run out of the room, as MacDougald and Clark insisted was their right. You have to take each question as it comes and decline to answer it citing attorney-client privilege, or executive privilege, or, what the hell, doctor-patient privilege or priest-and-penitent, which are just as applicable as any of the rest of that horseshit when it comes to whether Clark used personal email to conduct government business.

And this right here is not how any of this goes:

REP. RASKIN: Who is the attorney, and who is the client in the attorney-client privilege being asserted in your letter?

MacDOUGALD: We're happy to engage in that dialogue in correspondence with committee counsel, but we're not going to do it in the deposition, Congressman.

But if you're looking for a clue as to how this goes and where it's going, check out this exchange with Rep. Liz Cheney:

REP. CHENEY: Thank you very much, yes. I'd like to ask the witness when he first met Congressman Scott Perry?

MacDOUGALD: I will assert the privilege objection to that question, respectfully, Congressman Cheney.

REP. CHENEY: And what's the basis for the privilege assertion about your meeting a Member of Congress?

MacDOUGALD: The privilege objection is set forth in the letter, Congressman. It's a detailed legal question, and the parameters of the privileges that attend aides and advisers to the President extends in many directions.

LETTER! He's got LETTER! Have you seen LETTER? Can't ask any questions because LETTER!

LOL, and also, how you livin', Rep. Perry?

In fact, Rep. Adam Kinzinger was not impressed with LETTER, appearing as it did five minutes before the hearing began.

REP. KINZINGER: Just — yeah. Just a real quick — and, since the letter is the focus, can you tell me when this letter, if you would, was completed? Did you finish it five minutes prior to coming in at 10 o'clock, being as you had a legal obligation to show up today, and is that why we just got this at this moment — your legal obligation was completed just a couple minutes ago — or had you had this in hand a few days prior when maybe you could have shared it and we would have been, you know, better armed to discuss since this is the only thing you're willing to discuss?

In the end, MacDougald and his client stomped off, which was ... a choice.

The Select Committee's choice was to schedule a December hearing to hold Clark in contempt of Congress. And they failed to be dissuaded by a couple of letters from MacDougald on November 29 explaining that the Select Committee isn't boss of Jeff Clark and Committee Chair Bennie Thompson isn't his real daddy because Big Daddy Trump said so.

In the first letter, MacDougald argued that the committee had no authority to issue subpoenas because there was no ranking Republican member. Sure, Liz Cheney's the Vice Chair, but she wasn't appointed by Minority Leader Kevin McCarthy, so it doesn't count. And anyway, the Wyoming GOP won't let Liz Cheney sit at their table any more, so is she even still a Republican?

The second letter veered totally off the rails into "Star Chamber" and "Queen of Hearts" and "Spanish Inquisition" and "the French monarchy's abuse of the lettre de cachet." Before you ask, no, they didn't refer to the color of the fringe on the flag in the deposition room, but they did argue that the transcript was invalid because Clark refused to sign it. MacDougald finished his descent into wackassery by offering to let his client testify if the committee would agree to limit its questions to Clark's conversation with a Bloomberg reporter.


Last night the Select Committee met and voted to refer Clark to the whole Congress for a vote on a criminal contempt referral to the Justice Department, the way it did for Steve Bannon. But they're giving him one more chance to get his shit together on Saturday, when he's scheduled to come in and testify again. According to Committee Chair Bennie Thompson, Clark's planning to plead the Fifth.

Which is his right, of course. But he can't just shout "I PLEAD THE FIFTH" and wander off. He'll have to answer every question by either invoking his right against self-incrimination, or explaining exactly what privilege he thinks allows him to refuse to answer. And if he tries that shit he pulled last month, he's getting the Bannon treatment.

Good thing he hired that Kraken lawyer to keep him out of trouble, right?

[Select Committee Documents]

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Republicans Play Stupid Games With Vax Mandates In Hopes Of Winning Fancy Global Economic Crash

This is your regular reminder that the Republican Party does not exist.

Sure, they're still out there fielding candidates and ruining the country. But as a "party" with a platform and ideas? That train has left the station. Now they're just a projection screen erected by oligarchs to stoke rage and keep the hoi polloi roided out on memes as rural America is systematically strip mined and hollowed out.

So with that in mind, what are we mad about this week?


Yes, friends, insisting that people get inoculated against a highly contagious disease that has killed 700,000 Americans if they want to come into the office and breathe on their coworkers is cruel tyranny, and President Joe Biden is literally Hitler, or possibly Mussolini.

This aggression will not stand, man! No, not even if the GOP has to jettison every sacred principle they hold dear (don't laugh) and burn down the entire economy.

As multiple news outlets pointed out yesterday, four Republican-led states have enacted laws giving unemployment insurance to workers who are either fired for refusing to get vaccinated, or are offered a job that requires them to be vaccinated and they are not hired because they have refused to do so. In Tennessee, Iowa, Florida, and Kansas, the government will just pay you sit home on your rear if you don't feel like getting a shot. Three of those states — the ones with Republican parties who managed not to Kris Kobach themselves into a Democratic governor — opted to end federal unemployment insurance early, the better to force those lazy poors back into low-wage menial jobs. For what is society without the imminent threat of starvation to keep the lower classes pliant, right?

All able-bodied persons must work, insists the GOP. Except those who are too selfish to get a vaccine because they've been mainlining 4chan and their brains have turned to spaghetti. They deserve welfare.

Meanwhile, the GOP wingnut faction is plotting to engineer a government shutdown this weekend over the Biden administration's vaccine mandate for businesses. Led by Utah Senator Mike Lee, this brain trust will block unanimous consent for a continuing budget resolution to keep the government open unless they get a provision in there that blocks funds to enforce the vaccine mandate.

“I’m sure we would all like to simplify the process for resolving the CR, but I can’t facilitate that without addressing the vaccine mandates,” Lee told Politico Playbook yesterday. “Given that federal courts across the country have raised serious issues with these mandates, it’s not unreasonable for my Democratic colleagues to delay enforcement of the mandates for at least the length of the continuing resolution.”

It's not clear how much support Lee has for a maneuver which would provoke a government shutdown when Uncle Sam technically runs out of cash on Friday. (That's tomorrow!) But if Mike Lee wants to fuck this up all on his own, he can do it, since it requires unanimous consent of the Senate to move this forward expeditiously and get the vote done tomorrow.

It doesn't take a string theorist to work out that Lee and whichever cretins go along with him wouldn't succeed in getting their provisions in the bill — it would just get slowed down and cause massive disruption. But that's the thing about terrorists, sometimes they just like to blow shit up.

But God forbid the we end the filibuster and pass some damn laws, right?

[Slate / Politico]

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Mark Meadows Decides To Sing For Jan. 6 Committee After All. Jeffrey Clark Decides To Find Out.

Former Trump chief of staff Mark Meadows has decided that actually he will be cooperating with the investigation by the House January 6 Select Committee. The erstwhile South Carolina congressman had insisted that he could not possibly comply with the Committee's subpoena for testimony and records because Donald Trump told him not to. Perhaps the former president might wish to assert executive privilege in the future, even over communications Meadows had entirely outside the executive branch with organizers of the January 6 rally-turned-riot, he reasoned.

Meadows even went so far as to send his fancy lawyer George Terwilliger III, the former deputy attorney general, to publish an opinion piece in the Post accusing President Joe Biden and congressional Democrats of blowing up 200 years of history and destroying executive privilege.

But apparently Meadows has had a change of heart. Perhaps it was due to a frank discussion with his family over giblet gravy somewhere outside the DC bubble. Maybe he realized that those rally organizers he'd been chatting with were all cooperating, and they were going to narc him out anyway. Or it could have been the sight of Steve Bannon ranting on the courthouse steps as he turned himself in.

For whatever reason, Meadows has decided that he doesn't want to go to jail after all. And, as CNN was first to report, he and the committee have reached some kind of accommodation whereby the investigators will not be making good on their threat to hold him in contempt of Congress and refer him to the Justice Department for possible prosecution. At least not yet.

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition," Committee Chair Bennie Thompson said yesterday. "The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

Vice Chair Liz Cheney told Politico that Meadows would be testifying next week and confirmed that the Sword of Damocles remains very much over her former colleague's head. "We anticipate that this will be an initial deposition, and we'll make a determination as we go about the extent of his compliance. He’s under a legal obligation, and we anticipate that he will fulfill that legal obligation," she said.

For his part, Terwilliger insists that his client hasn't tapped out on executive privilege

"As we have from the beginning, we continue to work with the Select Committee and its staff to see if we can reach an accommodation that does not require Mr. Meadows to waive executive privilege or to forfeit the long-standing position that senior White House aides cannot be compelled to testify before Congress," he told CNN. "We appreciate the Select Committee's openness to receiving voluntary responses on non-privileged topics."

Okay, tough guy.

Meanwhile, former Justice Department attorney Jeffrey Clark is taking the Bannon route. Clark's Keystone Coup failed when the entire DOJ leadership and White House senior legal team threatened to resign if he was put in charge of the DOJ and allowed to use it to open fake investigations of non-existent voter fraud as a pretext for state legislatures to "de-certify" their Electoral College votes. His efforts were reported widely in the media and documented in a September report by the Senate Judiciary Committee.

In lieu of Clark testifying as subpoenaed, his counsel handed this wackass letter to the House Select Committee and walked out. His theory was that, although Trump had explicitly waived privilege for Clark's testimony, this waiver was conditioned on the Committee not subpoenaing anyone else. And since other witnesses were called, the permission was clearly revoked. Which is not how any of this shit works, since executive privilege exists to protect the institution of the presidency and the interests of the American people, not some golfing maniac's bloated haunches.

So today it is AND FIND OUT time for Clark, with the Select Committee meeting to refer him to the full Congress for a contempt vote. Womp womp.

"Mr. Clark’s refusal to comply with the Select Committee’s subpoena represents willful default under the law and warrants referral to the United States Attorney for the District of Columbia for prosecution under the contempt of Congress statute as prescribed by law," according to the committee's proposed referral. "The denial of the information sought by the subpoena impairs Congress’s central powers under the United States Constitution."

We can do this the easy way, or we can do this the hard way. As for all those witnesses who aren't getting the sharp end of the stick from the committee, well, you can safely assume that they chose to talk tough in public and sing for their supper in private.

[CNN / Politico]

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Chris Cuomo, GTFO.

Yesterday the New York Attorney General dropped another round of documents in the investigation into former Governor Andrew Cuomo. To say that it makes his brother Chris Cuomo look bad is something of an understatement. Contrary to his earlier denials that he simply offered supported as a brother, it's clear that the CNN host coordinated with the governor's staff and outside advisors to craft a response to the onslaught of accusers.

Even worse, he used his contacts as a journalist to run down leads to discredit the women accusing his brother of sexual misconduct.

“Rumor going around from politico 1-2 more ppl coming out tomorrow. Can u check your sources?” texted the governor's chief of staff Melissa DeRosa in March.

“On it," Cuomo replied, adding later, “No one has heard that yet.”

So not so much with his on-air claim in August that, "I never attacked nor encouraged anyone to attack any woman who came forward. I never made calls to the press about my brother's situation."

"I have a lead on the wedding girl," he said in a different text exchange with DeRosa, referring to another of his brother's accusers. In deposition he explained that "my friend had heard that maybe she had been put up to it." Which might have worked if there weren't photographic evidence of the exchange. He also appears to have done some digging into New Yorker reporter Ronan Farrow's reporting on former gubernatorial staffer Lindsey Boylan's Medium post detailing years of harassment by Andrew Cuomo.

“If If ronan has nothing better than boylan thats a great sign," he texted DeRosa on March 14.

“Did u get any more intel?” DeRosa followed up the next day.

“Story not ready for tomorrow,” Cuomo responded.

In addition to his frequent texts with DeRosa, Chris Cuomo was looped into the crisis management team via email as it sought to craft the governor's response to the avalanche of accusations kicked off by Boylan's revelations.

And you know what?


I, too, would do very bad things to protect my brothers (let alone my children). [I wouldn't. If I spent my time covering for my brothers' shit there would be no time left before the heat death of the universe. — Editrix]

I might dig for dirt on "the wedding girl" and then testify that "I would never do oppo research on anybody alleging anything like this. I'm not in the oppo research business. I don't tolerate a lot of oppo research on any level."

I'd probably even believe in my heart that I was telling the truth.

"This is my brother, and I'm trying to help my brother through a situation where he has told me he did nothing wrong. And that's it for me," Chris Cuomo testified. "How do I protect my family? How do I help protect him? Probably should have been thinking more about how I protect myself, which just never occurred to me. And that was it."

Ya think?

And yet, these things happened, and they are not okay, as Cuomo himself seems to have known at the time.

"Delete thread now," he texted DeRosa on March 10, a practice he attempted to explain away in testimony as a "constant and consistent concern about being hacked or someone obtaining my device and violating the trust of people who have put their trust in me."

But however understandable and human his conduct, CNN cannot continue to have a guy in prime time who wandered step by step so far off the path. Even when, as The Atlantic's David Graham points out, the network that allowed a host to interview his own brother on air bears some responsibility for creating an environment where journalistic standards might look more like suggestions than hard and fast rules.

"The thousands of pages of additional transcripts and exhibits that were released today by the NY Attorney General deserve a thorough review and consideration," CNN said in a statement yesterday. "We will be having conversations and seeking additional clarity about their significance as they relate to CNN over the next several days."

Well, better late than never.

[NYAG / Atlantic / CNN / CNBC]

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Trump Sure Doesn’t Want 1/6 Committee To See His Presidential Records! A Live Blog!

This morning the DC Circuit will hear Donald Trump's appeal of a DC District judge's refusal to stop the National Archives from releasing records to the January 6 Select Committee. I will liveblog it for you, so, fingers crossed that Team Trump delivers its usual high-caliber hijinks.

Three weeks ago, Judge Tanya Chutkan dick kicked Trump's request to enjoin the Archives from releasing his records. Apparently the court failed to see the logic behind his lawyers' argument that the former president's claim of executive privilege counts more than the sitting president's waiver. Then she dick kicked him again when he demanded that she stay her own order.

But the appeals court hopped in and did Trump a solid and put the order on hold. Only it was a very tiny solid, since they set a blistering schedule, forcing the lawyers to submit their briefs in rapid fashion and argue the appeal TODAY.

Trump is represented by Kraken alum Jesse Binnall and RNC dude Justin Clark. Clark argued the last hearing, and he was marginally less off-the-wall than Binnall in his briefs. Here's some background on the November 4 hearing. TLDR, the Trumpers just keep arguing that the proper legal standard is the four-part balancing test for congressional subpoenas from the Trump v. Mazars case, despite the fact that the issue there was Trump's personal records in the hands of his accountants. This case involves presidential records, which are the property of the federal government, in custody of the federal government, and presumptively destined to become public within 12 years as dictated in the Presidential Records Act.

And, hey, wouldn't ya know it, that's what the judges want to discuss. Here's the most recent order from November 23:

It is ORDERED, on the court’s own motion, that the parties be prepared to address the following questions at oral argument: Does the provision in the Presidential Records Act providing that the Archivist’s “determination whether access to a Presidential record . . . shall be restricted . . . shall not be subject to judicial review, except as provided in subsection (e) of this section,” 44 U.S.C. § 2204(b)(3) (citing 44 U.S.C. § 2204(e)), implicate this court’s or the district court’s jurisdiction in this case? See, e.g., National Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1094-95 (D.C. Cir. 2001). If so, what effect, if any, do §§ 2204(b)(3) and 2204(e) have on the subject matter jurisdiction of the district court to adjudicate any of the requests listed in the Complaint’s Claim for Relief?

In plain English, they want to know if the Presidential Records Act deprives the court of jurisdiction to hear this suit at all, and the case they're citing says that it's legal for Congress to insulate laws from judicial review.

Here's the relevant statutory language:

During the period of restricted access specified pursuant to subsection (b)(1), the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archivist, in his discretion, after consultation with the former President, and, during such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section. [...]

The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.

Yeah, yeah, it's boring. But if the judges can force Trump's lawyers to deviate from their wackass howling, this is what they're going to make them talk about.

And one more thing: Trump has drawn an absolutely terrible panel for this hearing, with three Obama/Biden judges, two of whom already ruled against his sweeping claims of executive privilege. Before Biden elevated her to the Circuit Court, Judge Ketanji Brown Jackson ruled that Don McGahn had to testify to the House from her perch at the District Court level. Judge Patricia Millett was on the original Circuit panel which ordered Trump to turn over his tax returns in the Mazars case. And Judge Robert Wilkins was appointed by Obama. So, make of that what you will.

Okay, enough foreplay. Let's get it on! Listen along here.

9:33 Wooohooo, Jesse Binnall up first on jurisdictional issues. Starting out with the BIG CRAZY.

9:38 Binnall was yammering for like 30 seconds about the history of the Presidential Records Act before Judge Wilkins and then Judge Jackson jumped in to ask about subject matter jurisdiction. I *think* Binnall's argument is that the PRA language only blocks courts from adjudicating challenges by third parties (i.e. by FOIA) to the National Archivist's decision whether or not to release a record. Binnall says it doesn't limit challenge by a former president.

9:42 Okay, Binnall isn't super crazy this morning. YET.

But he's getting his ass kicked all over the place because he wants to read jurisdiction into a statute that isn't really well drafted.

9:47 Judges Wilkins and Jackson have managed to force Binnall to narrow his argument from all the whining about the Select Committee's request being overbroad and politically motivated to the meat of the issue, which is whether the former president can assert executive privilege and whether the statute allows him to seek redress from the Court.

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