Monthly Archives: December 2018

Shutdown

It appears that the US Government is “shut down” as of a couple of hours ago.

Oh Dear!

Because the US Government traditionally does its best work between Christmas Eve – which Trump has declared a day off for Federal Workers – and New Years.

Say what you will about Trump, and I say plenty, he is not an idiot. Right now he can have a “federal government shutdown” for twelve days and no one will notice.

I don’t think the wall or the big steel fence or whatever else Trump wants on the border is a brilliant idea. But it is a campaign promise and Trump needs to take steps to keep it.

For the moment, Trump puts the Democrat’s and the Republican’s feet to the fire with very little downside to Trump. And he can just keep going. The fact is that only about a quarter of federal employees are actually laid off in a “shutdown”. Bets are that most of them are not hugely significant to the function of the US.

We’ll see.

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No PR for BC

Well, that was crushing: 61% of the 41% of eligible voters who actually voted rejected proportional representation and opted to stick with “first past the post”.

Assorted lefties and millennials were unhappy. But, really, they have only themselves to blame.

I rather like PR but none of the options presented on the mail-in ballot was worth having. Because the lefties who supported PR wanted to ensure that the PR they would have would avoid the possibility of actual “representation” for any but the NDP and the Greens while increasing the voting efficiency of those Green and NDP votes.

I will leave it to voting wonks to explain the three useless choices presented as the PR alternatives; rather I will pay attention to a very simple idea which was, of course, not included.

Reduce the total number of MLAs elected by electoral districts by, say, one half. So the 87 current electoral districts would shrink to 43. Then take the 44 seats that would open up and run a province-wide list system with a threshold of 2.5% of the votes cast. So you would have one vote in a First Past the Post race in your electoral district and 44 votes to distribute to the 44 slots on the “At Large” lists. [And I would not allow a “straight ticket” single vote…you’d have to vote 44 times or once – because vote plumping would be encouraged.]

Essentially this is the system the Australians use to elect their Senate and it allows a wide variety of candidates to take a run for office with a decent chance of winning.

It would also be a wonderfully upsetting experience for the current parties.

Ezra Levant was happy to see the FPTP system retained but wistful because he would have run a Rebel slate and thinks he could get 10%. (Maybe, I rather doubt it.) But what would happen is that a ginger group of half a dozen to a dozen “list elected”

MLA’s could represent everyone from my own favourite Wine Tax Freedom (WTF) Party to a party composed of First Nations people and on to Christian Fundamentalists and Antifa. With a 2.5% threshold, you can pretty much guarantee the First Nations party would hold four or five at-large seats. So could a Teacher’s Party or a Resource Extraction Party (see Suits and Boots). Recent immigrants to British Columbia could run their own lists as could Aged Bald White Guys such as myself.

But this sort of radical democracy was not on the table in this referendum. Too scary for the NDP and the ultra-conservative Greens.

Because real Proportional Representation was not on the ballot PR lost.

Too bad.

(I might add that it was a huge mistake for the pro-PR forces to entirely align with the left and the greens. Essentially that alignment turned the referendum into a pseudo-referendum on the current Red/Green coalition. That is never a good idea on what is actually a process question.)

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The Strange Case of General Flynn – II

Whatever hopes people had that Judge Sullivan was going to be annoyed at the FBI/DOJ’s procedural irregularities died as Judge Sullivan instead suggested that General Flynn had betrayed his country, asked the prosecution if treason charges had been considered (a remark he subsequently withdrew) and refused to rule out jail time. As he did this the Judge got Flynn on record as knowing that lying to the FBI was wrong, not believing he had been entrapped and insisting on pleading guilty even when offered the chance to change his plea.

Then, weirdly, the judge offered to postpone the sentencing indefinitely with a status update in 90 days. Apparently, this will allow Flynn to further co-operate with Special Counsel and give Judge Sullivan all the more reason not to jail Flynn.

Frankly, the indefinite postponement seems off to me. As does Flynn’s repeated assurance to the judge that he really does want to plead guilty. As Eli Lake points out at Bloomberg, “Nearly two years after the FBI trapped Flynn, the crime the Justice Department was investigating remains unknown. If it turns out that the reason Flynn was a target is as flimsy as violating the Logan Act or not being candid with his colleagues, then that itself is a scandal.”

I suspect Flynn wants to plead guilty because he has been threatened with a whole set of other indictments if he does not. Those, in turn, would cost millions to fight. And they might well involve his family as well. Purely as a matter of self-preservation, Flynn might believe he needs to plead.

The postponement of actual sentencing makes less sense. Mueller has already made his case for no jail time. Flynn is already a co-operating witness on a bunch of matters which – while well outside the scope of any proper Russian collusion investigation – Special Counsel is pursuing.

The delay may, however, give Flynn the opportunity to reconsider his plea agreement and to consider the foundation of the case against him per Eli Lake above. The only reason Flynn was in Court today is that he lied to FBI agents who, apparently, just dropped by the White House on instructions from Andrew McCabe – a now disgraced Deputy FBI Director. Why were they there? Why did they not follow standard protocols when dealing with the White House or with a represented person? As Lake asks, what crime were they investigating?

The foundations of the entire Special Counsel/FBI/DOJ operation against Trump, his campaign and his White House has always been vulnerable to attack on the basis that there is a lack of a foundational crime for the FBI/DOJ to have been investigating going all the way back to 2015 when, apparently, FBI/DOJ people began circling Trump. Back then there was no need for an actual crime because the tools being used were counter-intelligence rather than criminal.

The counter-intelligence investigation, as Andrew McCarthy has pointed out, morphed into a criminal investigation with the appointment of Mueller. But that appointment did not, in fact, create a criminal predicate.

While Flynn co-operates with the SC office on matters having nothing to do with the mandate of that office, he and his lawyers have the opportunity to rethink his case and their approach to it.

Reading Sullivan’s remarks and questions in Court today I get the sense that this rethinking was what the Judge had in mind as he systematically tore down the “Logan Act” premise and the “treason” premise by asking the prosecutor whether those charges had been contemplated.

Judge Sullivan also poked and prodded both Flynn and his counsel. The line “You sold out your country” (despite being entirely unwarranted on the facts before the Judge which he later admitted) was, in my view, meant to anger Flynn, get him to fight. So were the Judge’s remarks on the possibility of jail time.

Whether or not Flynn will be sufficiently provoked to rethink his position is hard to say. He’s been pretty badly beaten up by the process and couldn’t be blamed for simply walking away. But many things can change in 90 days.

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The Strange Case of General Flynn

“Lying” to the FBI is a crime in the United States. It is a crime which requires intent.

As Andrew McCarthy over at NRO points out, Flynn has pled guilty to making false statements to the FBI and that, in itself, closes the door on claims that he is innocent of the charge.

However, that assumes that the charge was proper in the first place. And there, even McCarthy admits, things get murky. Murky enough that Judge Emmet G. Sullivan has demanded that the Special Counsel turn over all its records of what went on with Flynn. Special Counsel turned over documents on Friday. There were two documents of note: first a 302 (the FBI’s record of interviews) for Peter Strzok’s interview seven months after the Flynn interview, second, notes made by Andrew McCabe at the time of the Flynn interview. Notably absent in the Special Counsel’s document pile was the 302 which actually recorded the Flynn interview.

Canada’s own Stephen McIntyre of Climate Audit fame, takes a long Twitter look at the circumstances of Flynn’s plea deal and the actual requirements for even the least formal FBI interview. McIntyre notes that, at the time of the interview, Flynn had legal representation on other matters which, in turn, made him a “represented person” for FBI/DOJ purposes.  (There is also the rather good argument that any senior White House staffer is automatically “represented” by White House counsel in any matter involving the DOJ. A fact acknowledged in an MSNBC interview by former FBI Director Comey:

“Describing how it is usually done, Comey said, “If the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel, and there would be discussions and approvals and who would be there.”

Recalling his decision to bypass those steps, Comey said, “I thought: ‘It’s early enough, let’s just send a couple guys over.’”)

Taking advantage of the early days of an administration to sandbag a senior official goes some distance towards tainting the investigation itself. However, ignoring DOJ/FBI policy with respect to represented persons is likely more significant.

At this point virtually all commentators agree that General Flynn will not be going to jail. But would still leave him with the taint of a felony conviction.

Judge Sullivan is in a position to vacate the plea agreement altogether if he sees evidence of prosecutorial misconduct.

Sending agents on a fishing expedition, telling the fish not to bother with legal counsel (when the fish is already represented), either failing to record or losing the contemporaneous record of the interview, substituting an interview with one of the interviewing agents for the contemporaneous record, and indicating – on such records as you do submit that the agents did not think Flynn was lying or intending to mislead the agents, all add up to more than ample grounds for Judge Sullivan to vacate.

However, given Judge Sullivan’s record, he may not stop at simply vacating the plea agreement. He is perfectly capable of going after the actual investigators and prosecutors who so badly abused the process to indict Flynn in the first place. (cf. Ted Stevens)

There is a pretty good argument that losing the Flynn plea deal to a Judge’s findings of prosecutorial misconduct would be the end of the line for the Mueller “investigation”. It is very clear that Mueller has not found much – if anything – in the way of evidence of direct Trump/Russia collusion. The ancillary crimes of Cohen and Manafort have nothing to do with Russia and little to do with Trump. Writing up a report for the incoming Democrat-controlled House of Representatives along the lines of “Orange Man Bad” is really all Mueller has left to do.

However, with Mueller gone, it will be time to start digging on exactly how the DOJ/FBI behaved on various files. Were it up to me I would start with the FISA application for the surveillance of Carter Page who Mark Styen likes to refer to as “the most innocent man in America”. Competent counsel can work outwards from there, charging as they go. Apparently, it is illegal to mislead the FISA court in sworn documents.

Should be interesting as there is a lot more “there” there, than there has been in the Mueller fishing trip.

Update: Well worth reading Mark Wauck Mueller’s ‘Enterprise’ Witch Hunt

Update #2: Margot Cleveland over at The Federalist takes a look at the dockets and suggests that the original 302 may have been filed under seal. There is a very good chance she’s right simply because Special Counsel would be nuts to refuse to submit documents in its possession at the order of the Judge. Especially this Judge.

 

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French Police vs. Yellow Vests

This is interesting.

The Yellow Vests are, ostensibly, protesting Macron’s imposition of higher fuel taxes in the name of CO2 reductions and the Paris Accord. However, while there is a strand of the protest which is really just people who like throwing rocks and lighting fires – apparently from both sides of the political aisle with more than a few of France’s increasing immigrant population taking advantage of the chaos – the bulk of the protestors seem to be the French version of deplorables. Working and lower middle class people from the provinces and the outer suburbs who have been steadily falling behind economically.

Historically, the French have been very good at organizing strikes and protests and the French police have become very good at breaking up such demonstrations.

But what this video shows is the French police “standing down”. Taking off their helmets. The crowd applauds and breaks into La Marseillaise.

Will the Yellow Vests bring down Macron? While I devoutly hope they do they will not do it on their own. However, if the police down tools that would be a different situation altogether. Of course, there would still be the Army; but how reliable the Army would be is an open question.

The one thing which the Yellow Vests need to keep their effort going is continued large numbers of non-violent protestors. This weekend there were fewer than last weekend. Christmas is coming. The point about street protests is they succeed when they are massive, they fail when people stay at home.

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