Tag: RussiaGate

Witch hunts and reasonable enquiries

This morning Donald Trump twitted “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt”. The thing he’s neglecting to consider is that motivation matters in employment cases. I used to work with corporate HR, gathering data when employees were being investigated for breach of company policy. Thing is, the breach was rarely the impetus for firing the individual. It was just the easiest and most defensible reason for firing an individual. Even in an at-will work state, a company is still open to charges of discrimination when terminating an individual.

An example was a call centre rep who had no interest in being polite to customers. He was rude, sometimes vulgar, and happy to convey how little he cared about the callers problem beyond “dad made me get a job, so I’m stuck here talking to people like you for three more hours”. Sure, he could have been reviewed poorly on each quarterly cycle, placed in the performance improvement program designed to assist employees become at least average contributing members of the company, reviewed poorly another time or two, and then fired for poor performance. That’s 18 months of bad customer service to provide overly-cautious legal coverage for a possible wrongful termination suit.

Or we find some policy that he has violated — there are a lot of laws, there are a lot of company policies. Look hard enough and you can find a violation for just about anyone. Held the door for the person walking behind you? That violates security protocols. Printed a pass for a concert you’re heading to after work – misuse of corporate resources. Forwarding jokes via e-mail to coworkers, using company computer resources to surf the Internet … in this particular chap’s case, it was consistently signing back in after his break a few minutes late. I wrote a job that compared his sign-on time for the phone system with his break times and automatically alerted supervisor and HR when sign-on was late. The first day, he was verbally warned about signing in late. The next day he was written up. Day three was another write-up with a warning that the next infraction would result in termination. And the next day, he was terminated. Now this is an extreme example because the employee did absolutely nothing to change his the proximal cause of his firing (i.e. had he started signing into the phone when his break ended, they would have needed to come up with something else). But the fact remains, he violated a company policy. Termination was recommended to redress his repeatedly late return from break.

Equally possible that the call center manager could have a old dude that they want to fire because they are old. It isn’t like I was told of the guy’s failings that led to the investigation. Found that out later from office chatter. Sign into the system late, get fired … and still have a perfectly valid wrongful termination suit for age discrimination.

What does all this have to do with Trump? Well, he decides he doesn’t like Comey because the guy isn’t finding a convenient scapegoat and ending the Russia investigation. Trump asks some of his administration for their opinion of Comey’s actions regarding the Clinton investigation last year and gets honest feedback (the call center dude DID sign in late from his break). The distal cause for termination can still constitute obstruction of justice. And, yes, the very people who recommended the termination when provided the proximal cause may well consider the distal cause distressing.

Alternative Fact: Witch Hunts

Alternative Fact: “You are witnessing the single greatest WITCH HUNT in American political history” — Donald Trump, on Twitter (where else).

Real Fact: Donald Trump may have been a little young at the time, but hello: Joseph McCarthy’s hunt for Communists in America!?! Now if “great” doesn’t mean widespread or terrible but rather goofy, I have to go with Christine O’Donnell.

Bonus real fact: Hyperbolic untruth is still lying.

Alternative Fact: Ignorance of the Law

Alternative Fact: According to Paul Ryan (R-WI), it’s OK if Trump asked the FBI Director to end the investigation of Michael Flynn and then fired the Director in an attempt to change the direction of the FBI’s investigation of Russian interference in the 2016 election.

Real Fact: Ignorance of the law does not exonerate a person. “I’m new here” might work when you violate a corporate norm in your first week at work — I didn’t know we didn’t brew a new pot of coffee after 4PM. I didn’t know the boss sits in the middle seat along the window wall at meetings. Yeah, someone will notice your transgression and let you know. I didn’t know that we don’t embezzle money … that’s on you to know, and you are fired. Possibly facing criminal charges too.

Possible bonus real fact: Trump did not realize that some branches of the government are actually meant to be independent of the White House. Seriously – that’s the implication behind Ryan’s “he is new at this” defence.

Alternative Fact: What Constitutes Privilege

Alternative Fact: James Comey “unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications” – Trump’s personal lawyer, Marc Kasowitz, in a public statement.

Real Facts: I was a little surprised to hear that Comey himself leaked the meeting notes, but it makes sense in the broader context. And someone with vast legal knowledge and experience in law enforcement will know if something is illegal (i.e. request immunity before testifying to the fact) or not (i.e. announce it in widely broadcast Congressional testimony). He specifically wrote the memo to be unclassified, so the White House could not claim disclosure of classified information.

So they went with “privileged”. Trump does not understand that FBI lawyers are not actually his legal council (bit of a frightening proposition)? They certainly aren’t his spouse or clergy (although I believe both spouse and clergy can unilaterally waive privilege under the Federal Rules of Evidence).

Alternately, Trump wants to assert executive privilege. Equally nonsensical. Executive privilege could have prevented Comey’s testimony in the first place. Or can be used when refusing to disclose information/evidence to legal or legislative bodies. Executive privilege does not protect information from the Executive branch from being disclosed to media outlets. Or subsequently published. And even so, Executive privilege can be denied if the information is deemed critical to the case (i.e. if a Congressional investigation is meant to determine if Trump obstructed justice in pressuring the FBI director to end an investigation … testimony from the FBI Director regarding Trump’s requests to conclude the investigation are central to the investigation. Which, I assume, is why the White House did not even try to claim privilege and prevent Comey’s testimony.).

Bonus Real Facts: Oh, Marc Kasowitz’s statement following James Comey’s testimony. Where to start? Saying it would be good to find out if some peripherally related individual is found to be guilty of collusion isn’t actually support of an investigation. It could also be interpreted in the full context of the conversation as “it would be good if this whole investigation got closed up quickly. Here’s how you do it: find some stooge from my campaign and pin it all on him.”.

Not being investigated does not mean anything — the original scope of a case may be an individual. The initial investigation implicates a few more who then become part of the investigation. The new targets yield evidence that implicates new people and so on. This is the fact behind Comey saying he did not want to publicly state that Trump was not under investigation for collusion with the Russian government — if something comes up that brings into question Trump’s actions, he will be under investigation. At which point, the ‘duty to correct’ means the FBI would need to announce that Trump is under investigation … substantively meaningless as many people are investigated without being guilty.

I was investigated for bribery in negotiations with China – not because I even knew my company had negotiations with China but because I was involved in the internal corporate investigation and participated in evidence gathering (i.e. they were investigating if the evidence “gathering” was more of an evidence purging activity). I had properly collected the evidence and turned it over to inside council, end of investigation. At the outset of the investigation, though, an announcement that “Lisa is under investigation as part of our inquest into international bribery” sounds bad.

Worse, though … Nixon didn’t personally break into the Watergate hotel, but covering it up after the fact and obstructing justice was illegal. Reagan didn’t personally ring up the Ayatollah to delay the release of Iranian hostages – but having a campaign adviser speaking to a cleric representing the Ayatollah … sounds illegal to me even if the investigation got curtailed in sympathy for a man with cognitive decline. Bill Clinton’s impeachment was over testimony regarding an extramarital affair — also nothing to do with the original investigation. When someone is determining if your actions constitute obstruction of justice, proclaiming your innocence in the initial matter is a complete red herring. Normally, yeah, innocent people don’t intentionally obstruct justice. Letting the Chinese bribery investigation run its course served me well — no personal harm, no professional harm. Just a few wasted hours of paid time.

But the investigation is hampering Trump’s agenda, and getting rid of the investigation might leave him clear to pursue legislative initiatives. The investigation, regardless of guilt, is causing harm. Which makes obstruction … well, not outside the realm of possibilities.

 

Russia Returns

Russia has a decent play at undermining the American government without actually colluding with Trump’s campaign. Do something that benefits any part and there is suspicion. Do something that benefits someone who has been suspected of shady dealings with your country (money laundering, loans to someone American banks consider too risky) and the suspicion is even deeper. Someone who has used obstruction and intimidation routinely in business using the same tactics in their political misadventure … not exactly shocking.

Trump’s administration seems hopelessly unable to do anything but help the Russians undermine our government. Firing Comey looks bad no matter what happened during the election. Sharing code-word classified information with the same country suspected of interfering with the election … outright silly.

An “independent” investigation or one run by the House / Senate / FBI led by whomever Trump puts in charge – there’s no good outcome.

The investigation finds nothing illegal – half the country things the investigation was tainted, but we continue down this path. Allies withhold intel because they cannot trust Trump not to use the latest intercepts to brag about how great his intel briefings are. Reasonable policies are overturned along with the unreasonable because the Executive branch leadership doesn’t understand the “benefit” part of cost/benefit analysis. Taxes are lowered and deficits explode.

The investigation finds something – half the country thinks it’s fake evidence to go along with their fake news. But something has to be done. It isn’t like there’s a do-over election clause in the Constitution (even if there were, half of the country objects to the do-over election). Trump is impeached and Pence takes over – Democrats object – we’d have almost been better off with the ignorant guy who didn’t heap religious fundamentalism on top of his deregulation, tax cuts, and environmental destruction. Trump voters who are not traditional Republicans object — they didn’t vote for Pence’s policies either. Trump is impeached and Pence goes down too — Ryan takes over. See previous.

 

The Story Within The Story

There have been a lot of instances in the past few months where a story about Trump contains a throw-away line that seems more important than the story being conveyed. Not reading EOs in a NYTimes piece not long after the inauguration, for instance.

Today’s reporting on Paul Manafort seems to be following this trend. The guy had a multi-million dollar contract with Oleg Deripaska … who is, in turn, a friend/ally of Putin. There’s a lot of focus on the money involved, the farther involvement of Trump associates with Russians, and the speeches and policy changes that were made pre-convention last year. But the scope of the work seems to be overlooked. He provided strategies on how to advance Russian interests around the world and undermine Putin’s political rivals. Which sounds a lot like advancing Russia’s interests by undermining rivals … or hacking the DNC and releasing information that negatively reflects on Clinton. And releasing more when she still looked to be leading in the weeks prior to the election.

The campaign chair potentially came up with the strategy that may or may not have involved collusion from Trump’s team. Even if they’re a bunch of stooges … the fact that the chap who consulted on the policy in the first place then took a high-level position with the campaign looks REALLY bad.

Read Your Constitution

I hear a few people hopefully speaking of impeachment as the FBI investigates Trump and his campaign for possible collusion with Russia during the 2016 election. Does anyone seriously think impeachment would nullify the election?! So Trump gets impeached. Now we have Pence. Trump minus the populist bits (infrastructure funding, trade protectionism) but with a heaping side of religious zealotry. I don’t care if the dude would personally never be alone in the same room with a woman other than his wife. People have all sorts of out-there principals that they uphold; so long as they don’t expect *me* to follow their dictate … who cares. But legislation banning sex ed, restricting access to birth control, bring back the sodomy laws – homosexual marriage isn’t illegal (so saith the Supreme Court) but so doing will meet the evidentiary requirements for a surveillance warrant at your local PD. Hell, even if you lived in a local and state jurisdiction where they just fail to investigate (and, don’t worry, the feds will threaten to withhold money from these ‘sanctuary cities’ too) … watch out where you vacation. Scrutinize your connecting flights. Hope there isn’t an emergency landing. Point being, Pence isn’t actually better. He has discipline and knowledge of government. He has a shot of getting pet legislation through Congress.

Maybe they’re hoping that Pence goes down with the ship too – great, now we’ve got Ryan. May be a win on the legislating fundamentalist Christian morality front, but we’ve seen his health care plan seven years in the making. Anyone seriously think his tax plan, regulatory plan … are going to be any better.

Then we’ve got Hatch – might be an improvement. Tillerson: government run by what’s best for oil companies! Of course next in line is Mnuchin: government run by what is best for mega-banks. Eventually one of these people will stick around – several were not involved in Trump’s campaign.

From Russia, With Love

The more I hear about Flynn communicating with Ambassador Kislyak, the stranger it seems. Why the subterfuge? Surely the Russians knew Trump won the election, and they knew when he took power. Even if they didn’t think Trump would remove any sanctions put in place (why object to something you know is going to be rescinded in a few weeks?), the strategic move would be to wait for an inexperienced administration before taking any retaliatory action. There was absolutely no reason to tell the Russians “hey, don’t worry about the sanctions being put in place by the current administration. we’ll get you sorted in January”.