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Tuesday, October 27, 2020

Ouch! This Could Really Hurt Dems In PA

From Breitbart:


One Week Left: 42 Percent of Pennsylvania Mail-in Ballot Requests Not Returned


And Rasmussen is saying:


Most likely voters believe Democratic presidential candidate Joe Biden was involved in his son's foreign business deals, according to a Monday Rasmussen poll.

The survey found that 54 percent of likely voters believe that Joe Biden likely was "consulted about and perhaps even profited in" Hunter Biden's foreign involvement in a Chinese company. Only 38 percent of respondents said it was unlikely the former vice president knew about his son's affairs abroad. 


Couple that with the trending search on Google, people wanting to claw back their vote. You get the picture. The censorship didn't work. One assumes that events may be following a similar trajectory in other states as well.



The Practical Difference Justice Amy Could Make

John O. McGinnis, a law professor at Northwestern University, writes today that the SCOTUS is now the "Barrett Court." In an admirably lucid article he argues that "the newest justice will change the dynamic among her colleagues." And, interestingly, we may see what McGinnis means by a 'changed dynamic' very soon--in the Pennsylvania election law case.

The way this changed dynamic works is actually quite simple. Chief Justice Roberts has been able in quite a few cases to shape the Court's decisions in ways that he prefers. He has been able to do this by alternately siding with either the four conservative justices or with the four liberal justices. Whichever side he takes in a 5-4 decision, as CJ he gets to either write the decision himself or choose who will write it. He also is able to influence the shape of the decision with the understanding that if the others don't go along with him, he can always go the other way.

With the solidly conservative Justice Amy now confirmed, that entire dynamic is changed--or, will change, as long as the five conservative justices are in basic agreement. The reason is that the five conservatives won't need Roberts' vote, and if he sides with the three liberals it won't make any difference. If he goes with the five conservatives with the intention of shaping the decision, that approach becomes much more difficult because they don't need him and can simply decline to join with him. Further, Justice Thomas could play a much larger role, by virtue of being the senior justice on the Court:


if [Roberts] is not in the majority when the rest of the conservatives are, the right to assign the opinion will then pass to Thomas. Thomas remains the most committed originalist on the Court and can use the opinion assignment to put the law on his own preferred trajectory. The diminishment of Roberts’s power thus shifts authority to Thomas. Look for him to write more originalist opinions for the Court. Thomas can also assign opinions to the other strong originalists, including Barrett.


This is why I was so excited to see Thomas at the White House ceremony for Justice Amy. I took it as a signal that the two are of similar judicial philosophies. Of course, in any given case things could get more complicated than this, but the tendency seems clear:


The strengthening of the originalist camp leads directly to more originalist opinions. A justice assigned an opinion has some leeway to write it the way he or she wants, and more originalists will enjoy the drafting pen. Moreover, justices can move the law with powerful concurrences and even dissents, and we will see more such originalist efforts with more justices joining them.


Roberts' Pennsylvania decision was a 4-4 case. With Justice Amy now on board, this 'changed dynamic' could play out in her first major decision. If Justice Amy sides with the four conservatives, if they hold together--and the concurrences by Gorsuch and Kavanaugh in the Wisconsin case suggest that they will--then Roberts will find himself either in the minority or compelled to execute and embarrassing public volte face.

ADDENDUM: There's something about this photo I really like:





Justice Amy's First Big Case Coming Up?

Last week, in a 4-4 decision written by CJ Roberts, the SCOTUS let the Pennsylvania Supreme Court's outrageous election meddling stand. That was followed by a Roberts smackdown of a federal court meddling in Wisconsin's election. The difference? Here, per Bench Memos, Roberts explains himself:


While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.


It sounds like a salutary exercise in federalism, but there is a fly in that ointment--the US Constitution.

Justices Gorsuch and Kavanaugh were having none of Roberts' rehashing of the Pennsylvania case, and sharply disagreed--once again. Ed Whelan explains:

Adam Housley On Biden Inc., Wray, Durham

I'm going to do something a bit different. Adam Housley--who claims to have multiple FBI sources able to tell him what's up with the Biden investigations and other matters--did a brief two-tweet thread. That led to quite a few comments, which Housley in turn responded to. Many of the comments mirror the impatience and other things I see in comments here, so Housley's thread may serve as a useful vehicle to address those matters.

What I'll do is first reproduce Hously's thread, but then I'll insert the comments and Housley's responses in Q & A format. I'll also insert some comments of my own. There may be some minor editing. As you'll see, Housley begins with the business about the FBI supposedly "dropping" any Biden Inc. investigation, but the discussion branches out a bit to Durham. So here we go:

Monday, October 26, 2020

Judge Amy Makes A Statement?

As you've probably heard, Judge Amy will become Justice Amy by being sworn in by ... Justice Clarence Thomas. No, not Chief Justice John Roberts, as is normally the case.

I haven't read any explanation for this. Is it possible that Judge Amy is sending a message, making a statement? Of solidarity with the solidly conservative judicial hero Clarence Thomas? Giving us an idea of what to expect? I hope so.

Or maybe this is--at least in part--a campaign photo op: Orange Man, Black Man, Suburban Mom? I like that, and if that's the case I like that Judge Amy was willing to go along with that idea.

But most of all, perhaps, I'm really happy for Clarence Thomas getting this moment in the spotlight. This guy has paid his dues. He's paid his dues but he has also given back--not only in his written opinions but also by hiring and mentoring really solid law clerks who have gone on to serve in influential positions, whether on the federal bench or elsewhere in public service. In that respect, Thomas is regarded as one of the most influential justices ever, and he deserves recognition for his contributions to the conservative cause, at the price of years of vilification by despicable people.


Joe diGenova On Biden Inc., Chris Wray, And Bill Barr

It should come as no surprise that in his latest appearance on WMAL Joe diGenova goes after Chris Wray in no uncertain terms--again. He absolutely detests Wray and the thing about that is, diGenova is perfectly placed--has been for decades--to have the lowdown on all the people we're watching in the Swamp.

I've transcribed just a few minutes of Joe's appearance. It's the part, beginning around 10:30, where he responds to a question about the Biden Inc. scandal. He first excoriates Wray, in his usual terms, but then Mary Walter asks the question so many people ask: Hey, what about Bill Barr? I addressed that just yesterday, but ...


JOE diGENOVA: [Describes apparent lack of FBI investigation into Biden family.] The evidence of illegal activity--whether it's FARA, Foreign Agents Registration Act, bribery, extortion, conspiracy by the vice president while he was flying around with his son on planes to foreign countries where his son then got business--la di da, how did that happen? This is ridiculous. And the fact that the FBI under Christopher Wray has done absolutely nothing--that we know of. There could be some bizarre, strange, ongoing, detailed, fabulous federal criminal investigation--my guess is, that ain't so--and so we are left with an empty bucket of nothing from the FBI and the Department of Justice. 

I hope that Bill Barr, as soon as the election is over, will explain WHAT THE HELL IS GOING ON with the Biden family. This is unacceptable. Either have one set of laws for everybody, or you don't. And right now, we have two sets of rules--one for Democrats, one for Republicans. And if anyone thinks that isn't true, they're an idiot.

MARY WALTER: Do you think the Attorney General will look into this and do something about this--even after the election?

JOE: I do. I do. And the reason for that is very simple. I have known Bill Barr for more than thirty years. He is a CONSUMMATE lawyer. He is also someone who believes very deeply in the integrity of the Department of Justice and he knows that it was compromised during the Obama administration, where that beautiful building was turned into a partisan political activity center, led by Andrew Weissmann--perhaps the worst federal prosecutor in the history of the department. And now he [Barr] has to inherit this mess. He took over--he, Bill Barr, took over with very little time to right the ship that's there. He's working on it. He's trying to do it. And he's being fought at every step of the way by career DoJ attorneys who are Democrats--95% of all the contributions going to the FEC from the DoJ went to Hillary Rodham Clinton.


I'll simply add this. If Donald Trump has been unable to clean up his own White House--although since the fake impeachment he has made some strides--why should anyone think that the task of cleaning up DoJ, with all the entrenched attorneys protected under Civil Service, will be any easier for Barr?

How many Chiefs of Staff has Trump gone through, and how many of them have turned out to have been sabotaging him? The military is still largely defying him. How long did it take him to maneuver John Ratcliffe into a position of influence? And yet Gina Haspel is still in place to thwart investigations.

Hopefully, the election will be a real watershed. Trump's move on Civil Service could be a harbinger of things to come, and it may well also empower AG Barr. 


Pennsylvania Polling Update

Not too long ago I did a post on Shipwreckedcrew's cogently argued call of Pennsylvania for Trump: Wow! SWC Has Called PA For Trump. SWC's argument was a bit math heavy. It relied on changes in voter registration as well as turnout over the last several election cycles. It all made very good sense.

Today a more traditional approach, the NYT/Siena poll, is pointing out problems for Biden in not just Pennsylvania as a whole but even in the city of Philadelphia. Accepting these polling results as accurate--and I can't believe that the NYT did not double check and then triple check these numbers--to my mind the results carry implications not just for Pennsylvania but for other states as well.

Sundance at CTH has dug into those results a bit, but he does it in the second half of a post that begins with a different theme. Here's what he found.

First, he focuses on this passage from the NYT story that should be a bit mind blowing for Dems:


…”Troubling for Mr. Biden in a different way is the fact that he has not yet matched Mrs. Clinton’s share of support in Philadelphia proper. Averaging the results of the two recent polls, he has the backing of 73 percent of Philadelphia voters, down from 83 percent for Mrs. Clinton in 2016. According to the Times/Siena poll, Mr. Trump was supported by 24 percent of Philadelphians, nine points ahead of his exit poll numbers in 2016.”


That's ... mind blowing. Biden down 10 points from Hillary--in Philadelpia proper--and Trump up 9 points from 2016. Pennsylvania could be beyond the margin of fraud. That was a factor that worried Trafalgar Group's Robert Cahaly, who last week placed Trump ahead in Pennsylvania.

Nationalism And Its Enemies

This is what Election 2020 comes down to, as many others lhave observed at length. Here I excerpt a longer article that makes the same point briefly. It's not really original, but it is a reminder that we all need. It's also a reminder that America is a national community--not the "idea" or "proposition" that as Neocons would have it. Additionally, in his concluding paragraph the author neatly encapsulates the Establishment's vision of American, the vision of Biden Inc.: A state in which the new aristocracy wields power over a disenfranchised and impoverished populace.


‘Death to America!” is a common refrain from antifa rioters from Portland, Ore., to Kenosha, Wis. Children are in the streets calling for the country’s destruction ...

These acts of violence encapsulate five decades of neo-Marxist indoctrination in American schools, colleges and universities. The left’s “long march” through the institutions is all but complete.

Their ignorance of history is the hallmark of the current crisis.

The violence suggests that tribalism based on group identity is poised to succeed the larger national community ... 

Elites, especially the professoriate, bear much of the responsibility for this state of affairs.

American free-market capitalism has been both the most destructive and the most creative framework for generating wealth and innovation. Yet historically, its destructive quality was tempered by the regnant nationalism of its people, one that ultimately superseded the idea of class.

In contrast, America’s corporate elite today, especially its financial plutocrats on the East Coast and digital aristocracy on the West Coast, seem keener to work on “global problems.”

Corporate elites have pushed a self-serving vision of a world of transnationalism unconstrained by local cultures and institutions, many of which took centuries to establish and consolidate. The new credentialed oligarchy—people simultaneously from everywhere and nowhere—feels an ever more tenuous sense of obligation to its fellow nationals.

The assault on the constitutional right of citizens to speak freely unless they affirm first the increasingly intolerant orthodoxy has been unrelenting.

As cities burn and racialists push to resegregate public spaces, the deconstruction of the American nation is coming dangerously close to completion. ... The neo-Marxist left is separating the institutions of American democracy from their national foundations. If they succeed, the U.S. will over time lose its republican culture and morph into a state in which the new aristocracy wields power over a disenfranchised and impoverished populace. The stakes are in full view for anyone to see.

 

Excerpted from: The American Experiment Is on Life Support--Neo-Marxists on the street and in institutions want to erase their opponents and deconstruct the country, by Andrew A. Michta.

Put A Lid On It!

That's what Joe Biden's handlers have told him to do with his campaigning:


With nine days left before the 2020 election, former Vice President Joe Biden is off the campaign trail without any in-person events scheduled.

On Sunday, Biden’s campaign called a “lid” on in-person campaigning for the day. A “lid” usually also means the campaign will not conduct press conferences or dispense press releases the remainder of the day. Biden’s campaign clarified that this was not a “full lid” since the former vice president would speak to supporters late-Sunday evening at a virtual “I will vote” concert.


Was the lid called because of a few recent, and very tentative, attempts by MSM types to ask about the Biden Inc. scandal? Or was it precipitated by Biden recently confusing Donald Trump with George W. Bush--or was that the first Bush, or even George Washington? Slow Joe's not telling, and may not even be sure:




The amazing part of the video is that Jill doesn't even bat an eyelash as Joe babbles on. It's almost preternatural.

Then again, maybe the lid is part of the Dem strategy to use Covid to scare people out of voting in person--presumably Republicans, who are overwhelmingly the people who vote in person. Meanwhile, the strategy supposes that Dems will vote by mail, swamping those few unafraid GOPers who show up in person.

Two problems with that.

The first is that all the polls show that the vast majority of GOPers simply aren't afraid of showing up in public--but Dems are.

The second is that this strategy presumes that, despite the well documented lack of Dem enthusiasm for Biden, Dems will somehow summon the energy to get off the couch, purchase a stamp, locate a site to mail their ballot, and fill out the ballot correctly. A tall order!

Meanwhile Trump is crisscrossing the country with his high energy campaigning.


Sunday, October 25, 2020

Oh, I Like This! Trump's Post Election Execution List!

Nope, there are no surprises on Axios' list of likely heads on the chopping block. It's headed (!) by Chris Wray at FBI, Gina Haspel at CIA, and with Mike Esper anchoring the third spot: Scoop: Trump's post-election execution list. Pretty much every patriot's dream list. If you're standing, don't bother sitting down for this next bit:


Wray and Haspel are despised and distrusted almost universally in Trump's inner circle. He would have fired both already, one official said, if not for the political headaches of acting before Nov. 3.

 

Let me count the reasons!

How does AG Bill Barr figure in all this? This is an article that you really have to filter carefully. Wray and Haspel seem like no brainers. However, here's what the article says about Barr:

Be smart: While Trump has also privately vented about Attorney General Bill Barr, he hasn't made any formal plans to replace him, an official said.

  • Trump is furious that Barr isn't releasing before the election what Trump hoped would be a bombshell report by U.S. Attorney John Durham on the Obama administration's handling of the Trump-Russia investigation.
  • Durham's investigation has yet to produce any high-profile indictments of Obama-era officials as Trump had hoped.
  • "The attorney general wants to finish the work that he's been involved in since day one," a senior administration official told Axios.

I'll make no secret of it. I think removing Barr before Barr is ready to go would be a major misstep--an own goal. Barr wants to stay on and finish the job and Trump would be well advised to leave well enough alone. Maybe the result of Durham's investigation haven't come in on Trump's schedule, but Barr has a list of significant accomplishments that would be the envy of any AG--starting with his masterful handling of Team Mueller, and continuing from there. I know of no one else who could do that job and handle the political heat like Barr has--and I'm quite certain that there is a long list of GOP senators ready to tell Trump the same thing. Nor can I think of anyone else with comparable stature and credibility, and who has the temperament to handle the heat in DC and in a Trump administration.

Read the rest. It's entertaining and overall encouraging.

UPDATE: And admit it--who else would have the moxy to go in front of Congress and pull this off?




Manafort, Flynn--And A Dog That Hasn't Barked Yet

John Solomon continues to plow through the FBI spreadsheet that purports to fact check the Carter Page FISA application. He's come across an interesting detail:


Memo suggests FBI opened Manafort probe before Trump hired lobbyist but gave no warning

Some question why bureau didn't give Trump a defensive briefing in spring 2016.


A footnote (#332) appears to indicate (it's redacted) that the FBI opened an investigation on Manafort on January 13, 2016, but never provided the Trump campaign with a defensive briefing about Manafort. 

Solomon consulted Kevin Brock, a former assistant director of intelligence for the FBI. Brock laid out the general principles behind providing defensive briefings:

MAJORLY UPDATED: Posobiec: DoJ Says FBI Dropped Laptop Investigation

I have reasons to be skeptical of this "scoop", which I'll get to. Obviously, if true it's a bombshell.



Problems:

1. "DoJ source"? Not, 'a source within DoJ with personal knowledge,' or something with a bit of specificity to show that the source knows what they're talking about. For all we know this could have come from someone in DoJ with a partisan axe to grind.

2. If the FBI actually did drop this investigation I'd kinda expect them to return the property to the owner of record--Isaac. One reason is the reason given in #3:

3. Isaac says that he had an agreement with the FBI that if Hunter came looking for his laptop he (Isaac) should but Hunter off and contact the FBI, who would hustle the laptop back to him. So if they decided not to go anywhere with the investigation--but maybe continue with the money laundering investigation that Giuliani says he knows about--wouldn't it make sense to return the laptop? They could always scrub it so Isaac could tell Hunter, Sorry, nothing was recoverable.

We'll just have to wait and see. Again.

In the meantime, this was fun:




UPDATE 1: Axios is reporting that FBI Director Wray did NOT initiate a "formal investigation" into what Axios euphemistically terms Hunter Biden's "foreign business connections".

UPDATE 2: I need to apologize. When this story first broke I noted some important facts (Two Puzzles) that I should have incorporated into this post. Two commenters--devilman and Cassander--have jogged my memory. As well, I came across a twitter thread by another FBI agent (former, I presume) who makes some related points.

What it all comes down to, and what makes Posobiec's claim impossible to credit, is the use of a grand jury subpoena to take custody of the Hunter Biden laptop. Here's how I explained that aspect--which was before we learned of the FBI's ongoing money laundering investigation (which Giuliani has now at least referred to):


Recall that the FBI took possession of Hunter Biden's laptop via a grand jury subpoena. As I've already explained, there's nothing at all surprising about that, since it avoids possible legal challenges based on the issue of whether the repair shop owner, Isaac, really did have legal possession of the laptop. However, there is legal significance to this method of taking possession of the laptop.

The use of a grand jury subpoena means that whatever Isaac told the FBI led the FBI to believe that there was evidence of a federal crime on the laptop. Having come to that conclusion, the FBI agents would have had to present that view to a local Ass't US Attorney (AUSA). If the AUSA agreed, a full investigation would be opened and a grand jury number assigned--and the subpoena could then be issued. That means that a determination regarding "predication" was made--the full investigation would have been authorized based on the determination that there were specific, articulable facts indicating that a crime had occurred--or might occur.

...

We've learned that several days elapsed between the first visit of the FBI agents to Isaac's shop and their return with a subpoena for the laptop. Given the political sensitivity of the Biden family and the likelihood that Joe Biden would once again be entering the political arena, I take it for granted that both the local FBI agents as well as the local USA office handling Delaware would consult with their respective headquarters. I also assume that any such consultation would have gone up the entire chain of command--at the FBI to Director Wray and at DoJ to AG Barr. I can't believe that anyone at lower levels would take it upon themselves to short circuit this process.


Bottom line, there was an investigation. To say that there wasn't makes no sense. To have "dropped" this investigation the FBI would, once the grand jury was involved, have had to get an opinion from the prosecutors handling the case. That would be difficult, given that this had to have been already briefed right up to the top at DoJ and FBI. Further, the only reason to use a grand jury subpoena to obtain the laptop would have been because the agents and prosecutors agreed on the need to then get a search warrant for the laptop. To "drop" the case at that point would raise far more difficulties than leaving it open.

So, with that refreshed, the other agent says:


As an Agent myself, this sounds fishy. Either the guy is telling the truth or it’s some sort of operation to make it seem like it. Either way you investigate until you figure it out. Especially if you have GJ authority.

Once you have subpoena power there is a lot you can do to verify the origin of the laptop. At a minimum you build up enough PC to get a warrant for the laptop so you can forensically analyze it. Either as a case against HB or a case against the shop owner. 

Then once you determine whose it is you start getting warrants for email accounts, cell towers, iCloud accounts. 

Either way, to say the shop owner’s story won’t hold up is an excuse. It’s either legitimate or it’s not. It’s either HB’s laptop or it’s not. It’s either real emails or it’s not.

And if it’s not then it needs to be investigated as a national security case. 


Shipwreckedcrew also commented briefly regarding the notion that the FBI and DoJ would suddenly "drop" the whole thing based on the claim that they didn't believe Isaac:

shipwreckedcrew
@shipwreckedcrew

It’s BS.  Reporters who don’t understand what they are covering. That would never be a consideration to go forward or not go forward.


So, hopefully I've learned a lesson from this.