Thursday, July 9, 2020

Shipwreckedcrew Critiques John Solomon's Durham Rumor

Shipwreckedcrew doesn't believe Solomon's sources re Durham are that good. What's of more interest, he also explains what he expects to see--what I've been saying:

John Solomon's speculation doesn't impress me.  I think he has a couple good sources -- but I don't think he has any close to Durham's work.  
What I expect. ... 
If Durham is not yet done, but he has a broad conspiracy already well established, rather than have a few minor players indicted on minor crimes -- like Klinesmith on an obstruction count -- I think 
We are more likely to see a broad "narrative" laid out in the form of a lengthy "speaking indictment" that goes into great depth and detail with regard to the nature and overt acts over time of a wide-ranging conspiracy. 
What exactly he opts to characterize it as a "conspiracy" to do is a very intriguing question.  A "conspiracy" by definition is an agreement to commit one or more crimes.  Obstructing the lawful functions of gov't is what Mueller alleged in various places. 
I don't think the facts will take him much beyond that.

Then in response to this question:

Will venue almost certainly be DC (auto aquittal if so), or are there mechanisms to allow charges in different jurisdictions?

He adds:

That is the beauty of a conspiracy charge -- you can have venue in any district where an act in furtherance of the conspiracy took place.  My guess is that he'll try for EDVA in Alexandria.

The important thing to remember is that "an act in furtherance of the conspiracy" doesn't necessarily need to be a "standalone" crime in and of itself. It can be a facially perfectly legal act, but if it is done with intent to assist or "further" the conspiracy then it becomes a crime. Simple example, renting a car--in a different judicial district--with the knowledge that it will be used as a getaway car by others who may stage a "theft" of the car. Venue for the overall conspiracy could be in either district.


  1. "What exactly he opts to characterize it as a "conspiracy" *to do*...."
    Awkward phrasing, esp. the "to do" part.
    Link please?

    Does he clarify on why a venue of EDVA in Alexandria?
    I'd hope that some deeds in this conspiracy were committed in other Districts, e.g. Clarke, Frederick, or Warren counties.
    All it may take is one cell phone call, while a perp was driving thru one of those counties?
    Or, would such calls be considered to be "from" the location of the phone firm's HQ location?

    I gather that, if even only one such deed was committed in one other District, the case against *all* perps can be brought in that other District.

    1. Probably because many of the conspirators reside in the EDVA and would have been on cell phones from there.

    2. EVDA was also known (at least a couple decades ago, if not currently) for its "Rocket Docket." It was considered very desirable as a venue for prosecutors who want to move quickly and not have cases languish before being heard in court. It also has a more balanced jury pool (politically, racially, fewer federal employees, for example) compared to DC.

      I assume for Conspiracy cases, the venue can be determined by the presence of any party to an overt act in support of the underlying conspiracy within the judicial district. Re; cell phone calls, I assume the presence of the phone of any conspirator in the district is sufficient if the phone was used in the district in furtherance of the conspiracy. I don't think the caller/csllee location is a distinction that matters. AS long as an "overt act" in support of the conspiracy (including making OR receiving a phone call intended to further the conspiracy) occurred within the district, it makes the district a potential venue in which to bring conspiracy charges related to that overt act.

    3. OK, that such calls be considered to be about the location of the calls, not the phone firm's HQ.

      I mentioned Clarke, Frederick, or Warren counties, because they're on the WDVA side of the border.

      So much will hinge on how the composition of the jury pool, and Voir dire.
      This drama may well be akin, to what was dramatized in the famous poem, starting/ ending with "For the want of a nail."

  2. related?

    >> <<

    FBI knew as early as 5 July 2016 that Clinton Campaign was ultimate client for Steele Dossier material he provided to FusionGPS. Carter Page FISA three months later claims "FBI speculates material was collected to discredit [Trump] campaign."

    Conspiracy to Obstruction of Justice?

  3. No doubt you will post about this, but Sullivan submitted a petition for an en banc re-hearing of the writ of mandamus ruling. He sure took his sweet time to submit this rehearing request.

    I'm ignorant of the rules for this process, but I thought it was the full circuit that had to initiate this? Which party, exactly, is Sullivan requesting this review for? I wonder how long the full circuit has to consider this petition and vote (assuming it is properly submitted). Does it have to be three weeks again? I mean, they could drag this on for months. I doubt Powell would wait that long before escalating, but what interest is Sullivan so heel bent on pursuing here?

    1. It's too technical for me to handle on my own. The brief appears to be at first glance a full on attack against Judge Rao, who has actually established a good track record already in her short time on the bench.

    2. Sullivan is either desperate to keep this case going, or he has some read on how the full circuit will vote. Presumably the full circuit is already familiar with this case, and if there was a majority opposed to re-hearing it would be dispatched with fairly quickly.

    3. Sullivan has shown himself to be a very bad man. A shameful blot on our judicial system.

    4. first basic he a party? Not to case, although the Ct App did ask him to explain himself? Not sure if the Motion for the Mandamus was vs. Sullivan, but doubt it...also, was it timely? DC Cir Ct App order was entered on June 24, and the rules grant 14 days for a party to file a motion for en banc; you don't count the day entered, start with 1 for the 25th, and, by my fingers, the 14-day period ended yesterday. I've skimmed brief, and it's very argumentative (in a hostile way, not debate team way!), and seems to be based, as his other arguments, on fact that he's a Judge and Can Do What He Wants! Also, I'd assume that Wilkins has already canvassed the court and no sua sponte order for an en banc rehearing seems to have been filed yet.

    5. Thanks for the insights, Tom. I was wondering about that first point of yours--is he, in fact, a party? I looked up the Fed Rules for App Proc for Bebe previously, but hadn't been counting the days. I just checked the filing, and it is, indeed, dated today, the 9th.

      As you say, it's written in a hostile style, especially toward Judge Rao. Undercover Huber pointed out the use of the term "couched" to describe Judge Rao's opinion--as if she wrote the opinion in a deceptive way to hide a radical intent "to turn ordinary judicial process upsidedown."

      I'm rather surprised that Wilkinson put her name to a rather intemperate briefing. Also, Rao seems to have already established a good rep.

      Agree, as you say, hard to believe there's much support for rehearing or the Circuit would have done it sua sponte, rather than waiting for Sullivan to request. Or so it seems to me.

    6. For Wilkinson & Sullivan to submit an intemperate briefing, teeing off on Rao, suggests that the aim is, less the en banc Circuit, than the "court" of (lefty) public opinion.

    7. MW wrote:

      >> Agree, as you say, hard to believe there's much support for rehearing or the Circuit would have done it sua sponte, rather than waiting for Sullivan to request. Or so it seems to me. <<

      I had the same reaction: if the Appellate Court had the stomach for this fight, and thought Rao's opinion was off-base, they'd have jumped in on their own by now.

      Do they have to give Sullivan a hearing to argue for en banc, or came they just dismiss his motion from the bench?

    8. well, the 14-day time limit applies to parties, so he doesn't consider himself one! Maybe it's just "hey, I'm a Judge and can file what I want where and when I want to, and I demand a rehearing because you idiots botched it up so bad!" Too bad Courts of Appeal rarely give reasoning for denying these. I'm sure there's enough behind the scenes drama to make a great made-for-tv movie.

    9. Looked at the rules a little more- Rule 41 provides the mandate takes effect 7 days "after the time to file a petition for rehearing expires...or 7 days after entry of an order denying a timely petition for a ...rehearing en banc...." The Court can change the dates, but the general rule is extensions must be sought prior to the expiration of the time period for which the extension is sought. The only "excusable neglect" provision in the appellate rules seems to be in rule for filing notices of appeals. Under all this, if their day count is off, the court need do nothing for the mandate to take effect next week.

  4. Solomon seemed to do some interesting investigative (or ear to the ground?) work. He and the wide-eyed, attractive but hyper, Sara Carter would be on Hannity to present their blockbusters. At some point he decided to go solo. Now I am not sure of his work and his “predictions”. I have decided to wait and not get excited about every Solomon rumor.

  5. Will Chamberlain discusses merits, skeptical:

    Expects court to turn down within a week.

  6. Thanks Mark - Will Chaimberlain's discussion is good.

    My take:

    - Rao wrote a very tight response

    - Judge Sullivan's response seems to be throw everything against the wall, and hope something sticks.

    - DC Court probably wants this to go away. This is becoming embarrassing for the court system, but may be I'm wrong, and they see this as a heroic resistance against the evil Orange Man.

    - Judge Srinivasan wrote the precedent I think is being questioned, so I doubt he would want to question this.

  7. Durham, under pressure to wrap up investigation, could 'punt' to after Election Day: source

    1. Yes, Solomon has half the conservative world freaking out.

    2. Dobbs is swallowing it whole.

    3. It's not just Solomon, he's being echoed by Surber, see his post yesterday, "Durham covers up Obamagate".

  8. I have always felt Lindsay Graham was nothing more than a helium balloon whole loves being in front of a camera and is not to be taken seriously. With that predicate, he did ask Kavanaugh about military tribunals during his confirmation hearings which was out of the ordinary, unless he was sending the message the administration intends on using them:


  9. This captures my feelings 100%. I have been amazed at lack of actions by the GOP Senate.

    Where the Hell Is John Durham? - Julie Kelly

    1. One problem Barr/ Durham likely have, and should've expected, is that, the closer it gets to the election, perps have ever-more incentive to stay mum, and gamble that a (now more likely) Biden win will end the whole probe.
      If Biden loses, they, at worst, face long jail sentences.

      Whereas, if they sing and Biden wins, the lucky ones figure to end up wearing Cement Overcoats, or end up like the Spilotros, shortly after he take office. (The less lucky ones figure to die only after lingering in agony for days, like [we're told] happened to some of Tokugawa's foes.)