emptywheel Profile picture
22 Feb, 104 tweets, 10 min read
You can watch Merrick Garland hearing at either of these links:

c-span.org/video/?508877-…

judiciary.senate.gov/meetings/the-n…
Durbin says DOJ under Barr became the Trump Department of Justice, an arm of the White House.
Incidentally, SJC added Padilla and Ossoff, dropped Ernst and Crapo and added Tom Cotton.

And Kamala Harris seems to have a new job somewhere.
Durbin emphasizes Garland will prosecute ALL of the people responsible for Jan 6.
Grassley now trying to excuse not giving Garland a hearing by suggesting poor alleged rapist Brett Kavanaugh was treated like an alleged rapist.
Unsurprisingly Grassley disagrees with Durbin on the Trump DOJ. Rule of law rule of law rule of law religious liberties.
Chuck Grassley doesn't want a DOJ that abuses FISA.

Trump DOJ's FISA abuses affected dozens of targets, including the two worst Carter Page applications.
Grassley misstates Biden's plan wrt John Durham investigation.

Grassley whining about Crossfire Hurricane. Durham has been reviewing it for 1 month less than the entire Mueller investigation, and found only the same crime Barr's DOJ committed on Mike Flynn's case.
Imma save up all the "drink" references for each invocation of Oklahoma City bombing until a bit later in my day.

We're on 3.
Wondering which GOPer will react against Garland's focus on DOJ's history of protecting minorities against white supremacists first. Cruz? Hawley? Cotton?
Durbin says 500 under in investigation for Capitol attack.

Says 230 have been charged. I think it's up to 237 that have been made public, with about a 4 day delay on many cases.
Garland: There is a line from OK city, and a line from OK city all the way back to original experience with Ku Klux Klan.
Durbin says he abhors violence whether from left or right.

He'll get no credit for it.
Garland says the policy of separating children, can't think of anything worse.
Garland explains that he can't speak about any pending matter.

Grassley brings up Durham.
Garland: I have no reason to believe that keeping Durham was not the correct decision.

Grassley: Only review for cause?

Garland: I need to talk to him.
As a reminder, here's how Durham's work has compared to Mueller's.

Pretty much the ONLY thing he did was get a probation sentence discovered by Michael Horowitz.
St. Patrick's day will be the date when Durham will have been investigating as long as Mueller.

But it is ALREADY the case that the investigations into the Russian investigation have lasted longer than the Russian investigation.

emptywheel.net/2020/12/01/the…
Grassley wants Garland to commit to defending Marathon death penalty on appeal.

Garland notes as sitting judge he can't comment on pending case.
Hunter Biden, drink!
Garland: Most heinous attack on democratic processes I've seen. One I've never expected in my lifetime. Give career prosecutors 24/7 all resources they could possibly require.

Intend to make sure we look more broadly, where this is coming from. Protect American people.
Garland distinguishing between following POTUS on policy matters but not on prosecution.
Graham: Do you promise to defend Portland courthouse against anarchists.

Garland: If violate federal statute.

Graham: More resources Jan 6?

Garland: Yes, consult with prosecutors. Eager to have oppty from Senate to ask for more resources.
Graham: Horowitz report?

Garland: Exec Summary. Serious problems wrt FISA apps wrt Carter Page, and subsequent report, the way FISA reports documented.
Graham: Clinesmith? [Note: I asked Graham if he was worried that the Jeffrey Jensen investigators had altered documents and he didn't give a fuck.]

Graham: Durham, legitimate?

Garland: Don't know abt investigation. I do think someone should look at. IG has done that.
Graham: Do you think Jim Comey good FBI Director? grumble grumble Have you ever been to the border? Drug cartels rushing the border.
Graham: 20th anniversary of 9/11. Al Qaeda hit us again?
Graham: Section 230 reform. Liability protection for big tech.

Garland: When I have relatively little info, one case on 230, straightforward application of law, I would have to have oppty to talk about that.
Whitehouse: Not legislators' business to meddle in prosecution. Appropriate for Congress to ask that DOJ give look on investigative measures?
Whitehouse: Want to make sure you are willing to look upstream from the people who occupied the building to find kingpins, not rule out funders, organizers, aiders or abettors? Fair question?

Garland: Begin with people on the ground and work our way up to those involved.
Whitehouse raises Gleeson's opinion, too many to mention press reports about problems in department. How do you plan to assess damage sustained?

Garland: Follow processes.
Whitehouse: 21 witnesses have answered none of questions asked. 28 letters went unanswered.
Whitehouse: what was motive of not answering questions.

DOJ substantially dismantled the Congressional Liaison office at the end.
Garland: The minimum you're entitled to is an answer about why a question is not answered.

Whitehouse: Help us make sure a backward understanding of why questions not answered?

Garland: At a matter of resource, priority allocation, give a sense of priorities.
Whitehouse: OLC has taken a lot of hits, torture, wiretap, SD, DC, self-propagating view of Presidential investigations. A part of department is in real trouble.

Intermediary of Exec Privilege. What to do about OLC and Exec Privilege.
Note: Whitehouse did NOT raise OPR/OIG distinction.
Garland again distinguishes between policies of Admin, as opposed to prosecutions.
Cornyn: Perception of a double standard.

Garland: Ed Levi is my model. His role was to be sure that justice meted impartially. Definition of rule of law.
Cornyn raising Comey on Hillary.

Garland: Don't think it's useful to comment on specific individuals. Derogatory comments abt subjects, targets, zealously attempt to reinculcate that spirit.
Cornyn now conflating Steele dossier with the CI investigation into Trump, which is like waving a sign that he doesn't know fuckall about the investigation.
Cornyn: Are you worried abt losing FISA if abuses?

Garland: I'm more worried about respecting American citizens rights.

[the right answer]
Klobuchar: Pardons?

Garland: Pardon attorney office has a set of very detailed regulations on appropriate pardons.
Klobuchar: Security at Capitol

Garland: always looking for new tools. Part of briefing. Law quite capable, were capable against McVeigh.

Klobuchar: AG to sign off on journalists?

Garland: Had pleasure of working on them under Ben Civiletti.
Garland: I wasn't aware they were rescinded.

Klobuchar: I could never get a straight answer from Sessions or Barr.
Klobuchar goes on at length about anti-Trust. Garland drops a lot of names about how important it is, but dodges on an agreement to support her bill.
Was AWK, but in response to Lee questions, Garland said the judges he has spoken to on FISC were pretty happy with the amicus.
Garland says care must be taken to ensure 1/6 commission not interfere w/prosecution.

Basically talking about immunity and sources and methods. Wonder if he knows how much sources and methods got disclosed in effort to undermine RU investigation.
Teddy Cruz says the Obama DOJ was politicized, says nothing about Billy Barr.
Of course, Cancun Cruz could be targeted in 1/6 investigation so it's understandable that he would like to spin investigating GOP criminals as partisan.
Cancun Cruz now falsely claiming that the IRA targeted GOPers.

That's not actually what happened, but never let truth get in the way of Cruz posturing.
Yes, I mean IRS.
CancunCruz now complaining that Eric Holder was far far more responsive to SJC requests than Billy Barr was.
Cruz trying to trap Garland into saying something on Horowitz.

Garland: I think deeply we have to be careful about how we use FISA. We need to find out why not followed. That was purpose of report.
BREAKING: Ted Cruz is misstating what the evidence says abt Biden's role in RU investigation, based on documents that were altered by Jeffrey Jensen investigation.
Garland: Only basis for targeting is risk of CI of criminal. (Which is what there was about Carter Page.)
Leahy: I wish we would have seen you in that chair five years ago for SCOTUS nomination.
In response to Q abt whether we need John Lewis Voting Rights Act, Garland talks about tools to increase ability of Americans to vote.
Garland talks about large # of exonerations in DP cases, and other crimes.
Sasse: Why is Article I shriveling [aside from my four years of running interference for Trump?]
Sasse: Mix of overreach by Article II and underreach by Article I.
As you watch how uncontentious this hearing is, remember that Lindsey Graham, who ALREADY said he would vote for Garland, held it up for no reason.
One question that hasn't been asked (unless it was the tiny bit of Lee I missed) is what Graham plans to do about Billy Barr fucking up all DEA cooperation with Mexico.
Blumenthal says report on investigation into Larry Nasser is done.

Just in time for Simone Biles to win another Olympics.
Hawley complaining that murder has gone up under Billy Barr.
Garland notes that at the time he joined DOJ, murders were 2X what they are now.
Hawley: I think defund the police measures sends the wrong message to police.

Know what sends a worse message, @SenHawleyPress? Inciting insurrectionists who assault 139 cops.
Garland notes he'd do what a lot of Defund the Police want to do, moving mental health to appropriate officials.
Shorter Hawley: Do you think assaults not inspired by me are domestic terrorism?
Garland: Attacking court at night is a clear crime and should be punished, interrupting procedings is interfering with politics.
Hawley complaining about people raising money off of investigating his sympathy for terrorism.
BREAKING: The worst lies told to the FISA Court happened under the Trump Administration, not the Obama Admin, not matter how many times Republicans claim to the contrary.
Hawley: Do you agree that deliberately submitting falsified evidence to FISA court.

[Again, showing that he doesn't know what the Horowitz Report showed.]

Also, IT HAPPENED UNDER THE TRUMP ADMINISTRATION.
Hirono asks the question she always asks: Since you became legal adult, any unwanted requests for sexual favors. Ever faced discipline relating to this kind of conduct.
Among other cities, Hirono talks about Kenosha, in question on consent degrees.
Garland notes that police officers want police officers who don't follow the Constitution to be held responsible.
Hirono asks if Garland knows of any voter fraud.

He says no. He should cite Billy Barr.
Tom Cotton, repeating Garland's comment that he doesn't think that Durham staying on is not correct.

Garland: Bc I'm sitting here and I don't have info abt what he needs. Everything I know sitting here says he should have resources.
Cotton says Barr said yes to protecting Mueller.

Somehow he doesn't ask whether Garland will prosecute Barr for that lie.
[Cotton is going to hold this nomination, perhaps to be a bigger asshole than Cruz and Hawley.]
Cotton: DO you regret that Tim McVeigh got death penalty and was executed.

Garland: I supported in that individual case. Have developed concerns. Sources of concern are exonerations. Arbitrariness. Disparate impact.
Cotton says McVeigh deserved DP. Do you believe Dylan Roof deserved DP?

Garland: I think this is pending case.
Garland crying now, answering how, bc the country took his family as refugees, he wants to pay back.
Marsha Blackburn talks Durham again.

It'd be really ironic if he started investing Billy Barr's interference last fall.
Durbin raises oversentencing and solitary confinement. That's refreshing.
Basically Mike Lee is trying to sandbag Gupta and Clarke.
Lee claims that more than half the country are Republicans who might be discriminated against bc they are religious.

Not sure if this is a Mormon thing.
Kennedy now asking Garland what systemic racism is. I think he gets the prize for pushing Garland the most on white supremacism.
Kennedy asking how you decide whether an institutional is systematically racist.

Garland talks about constitutional practice. "If there's a pattern and a practice."
Garland: If an entity has a large number of unconstitutional conduct, then they're responsible the same way a corporation is responsible.
Kennedy: Does that mean I'm a racist no matter what I do or what I think.

Me: Well, yeah.

Garland: Point of examining implicit biases is bring up to our consciousness.
Kennedy is doing this totally independent of any question of context.

"How do we know who wins?" Kennedy asks, which is a pretty great summation of white supremacy.
Now Grassley handing over a binder of letters of questions that haven't been answered. "The Trump people haven't answered it.

Garland: "I would like to keep the blame on my predecessors."
Grassley says he doesn't want Garland to use the fact that he's not chair to blow off his questions, as Barr did with DiFi.

Garland: I don't want to use any excuse.
Grassley actually asks Garland to get briefed BEFORE confirmation about it.

Garland notes that's not appropriate. Grassely backs off.
Grassley now claiming, in all seriousness, that DOJ didn't investigate anarchists.

[He of course is conflating Antifa and anarchists.]
Blumenthal notes that the last major nominee (meaning Amy Coney Barrett) couldn't say that humans had a role in climate change.
Cornyn sounds fairly insane talking about immigration.
Booker asks abt state/federal prosecutorial discretion on state legalization of marijuana.

Garland not a useful use. Says there should be no end runs around state laws by criminal entities.
Hawley: Did Biden consult w you on Yale?

Garland: No. It's highly appropriate unless you confirm me. I'm answering what the Supreme Court said.
Ossoff talks about public defender resources.

So we've talked about that, solitary, and excess incarceration.

What a refreshing hearing!
Garland notes that asylum is part of law. That may be a surprise to Hawley.
Teddy Cruz is worried about weaponized DOJ but is sure that Billy Barr never did politicize DOJ.

Now trying to push Garland to make commitments on Durham.
Here's the BIG problem with Cancun Cruz's complaint here.

Bill Barr was weighing in, ADMITTING HE KNEW FUCKALL about Mueller's investigation, and saying it should be shut down.

No one knows what Durham is doing now or why.
And, AGAIN, Cancun Cruz' claim that this implicates Biden is based off EVIDENCE THAT BILL BARR'S DOJ ALTERED. The very same crime that is the single crime that Durham found.

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More from @emptywheel

24 Feb
The FBI seems to be focusing (appropriately) on the organized gangs and the violence from 1/6. But here's how one KY couple came to be arrested 50 days after the event after being reported to FBI on 1/7.

courtlistener.com/recap/gov.usco…
1/7 tip: Lori bragged on FB she was one of first 100 in

1/8 tip: Lori claimed cops let her in, but showed me selfies inconsistent with that

1/8 LE interview: Lori claimed they were let in and cops didn't ask them to leave Image
1/13 TV, using Lori's vids: The doors were open. I'd do it all
over again!

1/14 TV, using Lori's vids shows alarms going off

1/15, FBI interview: Lori claims, on second thought, that there WERE alarms going off, she agrees to share selfie Image
Read 4 tweets
23 Feb
Shifted to detention hearing for Jessica Watkins. Baset laying out how the Oath Keepers aided and abetted destruction, which is their weakest hand for detention.

Judge Mehta is questioning whether imprisonment is not long enough to qualify as terror trigger.

[Fixed prosecutor]
Mehta is noting that govt arg this week is different than it was last week for Watkins' co-conspirator Thomas Caldwell.
Mehta: This is my second one of these cases. I would like to understand from the govt, because this isn't going to just be applying to Ms. Watkins, it'll be applying to remaining co-defendants and various in others.
Read 7 tweets
23 Feb
Amy Klobuchar starts by getting everyone to agree that this was a planned assault by white supremacist and other extremist groups which could have been worse (3 questions).

c-span.org/video/?509061-…
Sund claims that CBP had received warning the night before, but also claims he JUST learned that.

It has been publicly reported though.
Sund says they took additional steps to provide more hard gear. Not clear that hard gear got to them.
Read 29 tweets
23 Feb
Also in this, some Republican boys laughing gleefuly and taking personal credit for tanking Neera Tanden's confirmation.
In it, Cancun Cruz suggests that this was predictable. And the boys chortle about how good it is that Texas' grid is not regulated.
"One of the reasons people move here is cost of living. Our energy prices are much lower than other parts of the country," says Cancun Cruz, whose constituents are paying 5-digit energy bills now.
Read 5 tweets
22 Feb
I want to talk about this Intercept article making claims about the Jan 6 investigation.

theintercept.com/2021/02/22/cap…

I believe RIGHT NOW, it significantly overstates what it shows.
Let's start with the source. Aside from experts, the story relies on a single named source--a recently retired senior FBI person. Image
Was this person part of the investigation and quit out of concerns? Or was this person one of the people who advanced his career by firing those who investigated Trump people, which is THE LEAST damning explanation for why the FBI missed this terrorist attack?
Read 16 tweets
22 Feb
The details of this story -- and the understanding of the legal charges against Jan 6 insurrectionists inadequate -- are too vague to sustain outrage about it.
Just as an example, I love Mike German, but without knowing how FBI is using the data or how granular the data is, you actually CAN'T make this claim, bc every non-Congressional employee IN the Capitol were breaking the law.
I also think ANY recent senior FBI retiree should be asked if he was one of the people who politicized DOJ and led FBI to not investigate any Trump associates. Some are.

It's hard to find a universe of people who would have knowledge of this investigation but not conflicts.
Read 5 tweets

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