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The Stakes and Misinformation about the Andrew McCabe Declination

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Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

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As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

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With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

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dgallagher60
178 days ago
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The Stakes and Misinformation about the Andrew McCabe Declination
http://feedproxy.google.com/~r/emptywheel/cAUy/~3/hmwwtprawqw/


‘With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him.’
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Dark Times Require Focus

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Iowa shouldn’t matter. It’s a small state that looks very different from the national Democratic electorate. In 2016 it voted Republican. This state’s outsized impact on the presidential nominating process rests somewhere between absurd and scandalous. But this debacle tonight is difficult to process.

We shouldn’t have caucuses at all. All things that are functionally elections and render results as elections should be by ballot and run by the states. States can and do frequently screw things up. But we’ve been running elections in this country for going on a quarter millennium. We’ve got lots of practice at it. This debacle starts to seem more understandable when you realize that this was a new system – run a different way, with a plan to report not one but three different totals. (It’s another reminder that apart from semi-banning superdelegates, the various post 2016 reforms have ranged from misguided to disastrous.) It’s the first time trying it. Even apart from an app that apparently didn’t work things can go wrong when you do something for the first time.

No caucuses. Real elections run by the states.

I’m not a huge fan of Axios. But they’re quite good at scuttlebutt and access journalism within the Trump White House. They ran a story a couple days ago reporting that the lesson the President has learned from his impending acquittal is that he is “invincible”. Everything people told him was too crazy and he couldn’t do he did and he was right. In Vanity Fair Gabriel Sherman reports that President Trump is compiling an impeachment enemies list and wants John Bolton criminally investigated and put in prison.

Whether each of these reports is accurate isn’t clear. In the Trump world the question may be over-determined. Trump is constantly saying crazy things. It’s likely hard even on the inside to know which mean anything and which don’t. What is clear is that President Trump will almost certainly feel more unbound in 2020. He will feel vindicated and newly dangerous if he is reelected. People who oppose Trump need to be focused like never before.

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dgallagher60
191 days ago
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Dark Times Require Focus
http://feedproxy.google.com/~r/Talking-Points-Memo/~3/B_DO5An6CzQ/dark-times-require-focus


‘the lesson the President has learned from his impending acquittal is that he is “invincible”’
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Quote of the Day: “This is most likely the largest cartel in the history of the United States”

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Aren’t generic drugs great? Once a drug patent expires, generic manufacturers are allowed to copy the drug and sell it for far less than the brand name. Since the production cost of most generics is just a few pennies per pill and competition is fierce, this is a great deal for consumers.

More accurately, it would be a great deal if all the generic manufacturers weren’t conspiring with each other to fix the price of generic medications. However, if the US government is to be believed, executives at these companies meet regularly to split up the market like gentlemen and keep prices nice and high. Naturally they’ve developed their own special patois:

The “sandbox,” according to investigators, was the market for generic prescription drugs, where everyone was expected to play nice. “Fair share” described dividing up the sales pie to ensure that each company reaped continued profits. “Trashing the market” was used when a competitor ignored these unwritten rules and sold drugs for less than agreed-upon prices.

….What started as an antitrust lawsuit brought by states over just two drugs in 2016 has exploded into an investigation of alleged price-fixing involving at least 16 companies and 300 drugs….“This is most likely the largest cartel in the history of the United States,” Nielsen said. He cited the volume of drugs in the schemes, that they took place on American soil and the “total number of companies involved, and individuals.”

….In just one instance of extraordinary cost spikes, the price of a decades-old drug to ease asthma symptoms, albuterol, sold by generic manufacturers Mylan and Sun, jumped more than 3,400 percent, from 13 cents a tablet to more than $4.70. The example is documented in a lawsuit brought against the generic industry by grocery chains including Kroger.

….The alleged collusion transformed a cutthroat, highly competitive business into one where sudden, coordinated price spikes on identical generic drugs became almost routine. Competing executives were so chummy they had an alphabetical rotation for who picked up the tab at their regular dinners, according to a person familiar with the investigation who spoke on the condition of anonymity because the case remains under investigation.

This is why we have antitrust rules. I sure wish we used them more often, not just in open-and-shut cases like this.

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dgallagher60
611 days ago
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Mom
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Peak Trumpcare Sad Trombone

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Here’s how ridiculous the Trumpcare 3.0 situation has gotten. A few minutes ago, Rep. Rodney Davis was on MSNBC telling plain falsehoods, lying about Obamacare and also – in a weird mix of plaintiveness and disingenuousness – complaining that the Democrats in the House weren’t coming forward to help them repeal Obamacare.

Beyond the disingenuousness, he actually seemed slightly sad because their situation is so hapless and helpless.

Here’s the video …

Here’s the transcript …

I’ve been an advocate because we got to look at the facts here, Craig. The facts are 29 million Americans right now under the Affordable Care Act still do not have insurance even though the law requires them to. Another 31 million, Craig, have insurance that they can’t afford to use. Premiums sky rocketing in the individual marketplace. If we don’t do something, then we’re abdicating our responsible as policymakers and I wish the Democrats who gave us this bill, I wish they would come to the table and offer their suggestions for this fix they keep talking about but we don’t see.

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dgallagher60
1198 days ago
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Donald Trump's Position on Abortion Changes Yet Again

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So what is Donald Trump's position on abortion? Let us count the ways:

Wednesday:

MATTHEWS: Do you believe in punishment for abortion, yes or no as a principle?

TRUMP: The answer is that there has to be some form of punishment.

MATTHEWS: For the woman?

TRUMP: Yes, there has to be some form.

A few hours later:

Campaign statement: This issue is unclear and should be put back into the states for determination.

A few hours after that:

Campaign statement: The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman....My position has not changed.

Thursday:

"It could be that I misspoke but this was a long, convoluted subject....This was a long discussion....which frankly they don’t run on television because it’s too long."

(Ed note: This is a lie. Trump's answer was televised in its entirety.)

Friday morning:

"A question was asked to me. And it was asked in a very hypothetical. And it was said, 'Illegal, illegal'....But I was asked as a hypothetical, hypothetically. The "The laws are set now on abortion and that's the way they're going to remain until they're changed....I think it would've been better if it were up to the states. But right now, the laws are set....And I think we have to leave it that way."

A few hours later:

Campaign statement: Mr. Trump gave an accurate account of the law as it is today and made clear it must stay that way now—until he is President. Then he will change the law through his judicial appointments and allow the states to protect the unborn. There is nothing new or different here.

The best part of all this is that when the Trump campaign issues a statement cleaning up after their boss, they always insist that nothing has changed.

No, wait: the best part is when John Dickerson asked Trump if he thought abortion was murder and Trump refused to answer. "I do have my opinions on it. I just don't think it's an appropriate forum." Really? Face the Nation is not an appropriate forum for discussing one of the key political issues of our time? What is?

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dgallagher60
1594 days ago
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Please No, wait: the best part is when John Dickerson asked Trump if he thought abortion was murder and Trump refused to answer. "I do have my opinions on it. I just don't think it's an appropriate forum." Really? Face the Nation is not an appropriate forum for discussing one of the key political issues of our time? What is?'

Quiet rooms, of course.
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Because We Can

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carrier-performance-17

If you’ll forgive me for honing in on Erik’s racket, Dayen notes that Carrier is shutting down its Indiana plant even though it’s part of a profitable section of a profitable company:

A look at United Technologies’ annual report reveals even more good news: Commercial and industrial products, Carrier’s category, make up over half of UTC’s $56 billion in net sales. Climate, Controls & Security had 3 percent growth in 2015, the highest in the company; it was the only division to increase its profit margin year-over-year. “Organic sales growth at UTC Climate, Controls & Security was driven by the U.S. commercial and residential heating, ventilation and air conditioning (HVAC) and transport refrigeration businesses,” according to page 14 of the report. In other words, air conditioners – what the workers are making in Indianapolis – drove the growth of the best-performing facet of United Technologies’ business.
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So why would a profitable, growing business need to ship jobs to Mexico? Because their shareholders demanded it.

He also makes a very important point about how this isn’t just about trade deals, but about changing norms:

Things like free trade and opening the doors to competition with China are the tools by which shareholders are satiated with hefty corporate profits. But the cause is the philosophy of shareholder value, the idea that a corporation exists solely for the benefit of its investors. While this may sound intuitive, that’s just because it’s been drummed into our heads by every business page and CNBC shouting head for decades. The thing is, shareholder value is actually a relatively new phenomenon.

It’s not that trade deals are unimportant. But, in particular, tariffs have limited value to stop capital movement when the labor costs are so much cheaper. (And, of course, a high tariff regime would also limit the purchasing power of workers.) There’s a broader problem in that corporate norms increasingly place little or no weight on the interests of workers or communities or anything but shareholder value. I don’t have a good solution for how to rearrange the incentives (although steeper progressive taxation would be a good start), but it’s a serious problem.

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dgallagher60
1604 days ago
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How about punishing Carrier and not buying their products?
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