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Contributor at https://t.co/3iVsWhvy0J; 22 years as federal prosecutor; six years private practice.
Skymom the Chump Profile picture kcrouch Profile picture Tex Profile picture get your facts straight Profile picture Holymolyrocky Profile picture 33 added to My Authors
30 Oct
Top notch Nevada election analyst Jon Ralston has Biden in front with a shrinking margin headed to Monday. Not totally surprising.
But he has also has first term Dem. Rep. Susie Lee in trouble in the Nev. 3rd Dist.
Pres. Trump carried this district 48-47 in 2016, but Lee won it in 2018 52%-41% when the seat was open.
Lee's opponent has only run for office one prior time, losing a race for Nevada State Senate. If he knocks off an Dem incumbent in a district that is very even in regis.,
That would be solid news for the GOP because it means the Independents broke for the GOP candidate. This is a suburban Las Vegas district, covering the area south of the city down to the "point" at the bottom of the state.
Read 6 tweets
27 Oct
Here is another good example of an idiot non-lawyer writing as if she understands evidentiary issues.
emptywheel.net/2020/10/27/doj…
Marcy has blocked me, so please @emptywheel her from me.
The only thing Ballentine was tasked to do was to confirm under oath that the notes from Strzok and McCabe were "true and correct copies" of the originals. She didn't need them to do that -- she could have compared the copies to the original herself and made the declaration.
But she did contact them. The didn't respond in way that helped her with her filing requirement. But she had talked to them in the past about the notes -- as both acknowledge. Sullivan's order did not say she had to get "authentication" from Strzok and Page, but she tried.
Read 4 tweets
25 Oct
I actually think there is a lot of truth to this. A Biden/Harris win effectively puts Harris in position to run the party for 12 years. She would finish any part of Biden's first term, then run herself as an "incumbent" in 2024, and could run again in 2028.
But her own primary run showed she has not significant constituency in the Democrat party that is committed to her. She would likely be "controlled" by the Obama-ites who would control a Biden Admin via appointments and cabinet posts.
But there are significant factions within the Democrat party that want to transition farther left -- the younger AOC crowd. The do not want Harris in de facto control of the party for maybe 12 years. So when the Dem primary field took shape in 2019, with Sanders/Biden/Warren
Read 5 tweets
21 Oct
To add another layer of specificity -- when you get a warrant for a computer, that doesn't mean you crack the hard drive and dump everything. The computer is the "place" you are searching. The warrant must also describe with particularity the items you are searching for.
The warrant is not a "generalized" right to search for whatever is on the drive. The warrant is to search for evidence of a particular crime that the owner is suspected to have committed. You have to specify the crime, and the nature of the evidence you are looking for.
So, if you have a warrant to search for child porn, there are search tools the FBI uses to narrow their search for just that file data. They don't get to read through all the documents that evidence of bank fraud. That's not what the warrant authorized them to are searching for.
Read 4 tweets
21 Oct
The OLE document you screenshot is about 10 years old. I think OLE has held off publishing a new one the law on electronic searches is evolving so much -- especially with regard to phones. It was true at one time that Jacobsen -- which was a physical proper search ...
was seen as support for the "private party" search exception to the Fourth Amendment. But the law has not developed in that fashion. Following Riley v. California in 2015, Circuit Courts have scaled back the "private search" doctrine for phones and computers.
But a significant practical problem is the inability to have LE "reenact" the private party search. The FBI does not search computers the same way a repair shop would. The FBI tech agents aren't going to sit down with the repair shop worker and say "Show us what you did".
Read 5 tweets
21 Oct
Let me add a dose of reality to the world you guys live in.
FBI agents and prosecutors do not sit around all day waiting for a computer to show up unexpectedly and land on their desk. They are busy offices. There are thousands of open case files in an FO the side of Baltimore.
Deleware US Attorney not that big but hundreds of filed cases and hundreds of open investigations. Unless a particular case is an unfolding "life of death" drama, it's going to "get in line" when it gets opened. The agent who picked up this laptop had to give it to a tech agent.
It's the tech agent's job to image the drive and then run it through a series of programs to sort out the files into different types. Normally they only do that if they have a warrant, and the warrant tells them what they are looking for.
Read 5 tweets
16 Oct
First -- "RR wear a wire" story from McCabe is idiotic. The MORNING before that statement was supposedly made RR asked Mueller to be SCO. Mueller being SCO meant McCabe was "out" -- so why would RR make any such suggestion if the next day Mueller was being announced?
It always has been a BOGUS stupid claim made by McCabe after he learned RR and recommended Comey's firing. Re RR being "in on it", he recommended Comey's firing, he fired McCabe later, he fired Strzok, I'm sure he supported Wray, and Wray got rid of most of the rest.
If RR was a "player", why recommend firing Comey? Why even appoint an SCO when McCabe could have done just as much -- or more -- damage completely out of sight, working hand in hand with people in RR's DAG office. RR went the SCO route because he had to take McCabe out.
Read 4 tweets
16 Oct
Here is an @thelastrefuge2 story that does advance the story. Not sure I agree that it says as much as Sundance thinks it does, but it is noteworthy that the Oct. 20, 2017 Scope Memo to the SCO added Michael Flynn Jr. as a potential SCO target.
theconservativetreehouse.com/2020/10/16/the…
Adding Mike Flynn Jr. had only one purpose - to increase the pressure on Gen. Flynn to cooperate. This "expansion" of the scope on Oct. 20 is in the middle of the SCO's negotiations with Gen. Flynn over whether he would be charged, and whether he would plead guilty and cooperate.
It is right out of Weissmann's "mafia" playbook. Find a target's weakness, then go hard at the weakness until the target buckles. Rosenstein's testimony was clearly an admission that he allowed the SCO to establish their own "scope" - although we do know that he did deny some.
Read 8 tweets
16 Oct
I'm not sure they were actually thinking that far ahead. I think most of the key actors were convinced Pres. Trump was not suited for office, and there were issues that were legitimately subject to investigation even if doing so would have led to that result.
So a big issue is whether they were "legitimately" conducting an investigation into matters within their jurisdiction, where the "abuse" was the fact that it had the potential for "political" fallout. That's more a "policy" question, and everyone involved has been terminated.
Whether the specific steps taken along the way were violations of federal statutes that can be proven is a different issue. Clinesmith is a clear instance -- he was motivated by his politics, and he altered a document as a result.
Read 4 tweets
16 Oct
And my question for all these kinds of inquiries is "What crime are you referring to? Give me a statute." There are investigations ongoing to develop facts and gather evidence and decide if the statutory elements of specific statutes can be proven beyond a reasonable doubt.
What Sundance and the commentators are agitating for is that this work take place on their preferred timetable. But they make these criticisms from a position of ignorance on how the work gets accomplished. Sundance play-acts about having insight into how evidence is gathered...
Or more often his claims about how evidence gets ignored or buried -- only because matters aren't progressing on a timeline that makes sense to him. You know how investigative timelines get fucked with? By defense lawyers and something like COVID.
Read 6 tweets
16 Oct
You should probably take a little more time to read my timeline before you weigh in further. My "defense" of DOJ isn't that -- it's pointing out FACTUAL errors made by Sundance. He said "FBI turned the laptop over to US Attorney's Office."
My response was simply "No it doesn't work that way" and then explained the process and why Sundance's click bait was misleading. The fact that the public has not been told what the FBI did with the computer the past 10 months doesn't mean it was "buried" -- Sundance's claim.
When the FBI seizes a computer the first thing they do is image the hard drive. The computer itself goes back to the evidence custodian. The FBI Tech Agents -- they are AGENTS specially trained in forensic computer analysis -- then employ special programs to analyze the drive.
Read 5 tweets
15 Oct
The US Attorney does not take possession of any evidence. The US Attorney's office does not have a facility for storing evidence such that chain of custody can be maintained. The FBI takes possession of evidence obtained via GJ subpoenas.
The Agent and the AUSA would have appeared before the GJ and reported to the GJ that a subpoena had been issued, and that a laptop(s) were received in response. The subpoena is actually for delivery of the items TO THE GRAND JURY, not to the USAO.
When the Agent and AUSA do the "return" before the GJ, the AUSA will ask the GJ's permission for the Agent to maintain possession of the evidence for use in the investigation. They always say "Yes" because the GJ doesn't have any place to store it.
Read 8 tweets
13 Oct
This is just not correct. If you watch the 3-4 frames before this one, you can see that Dolloff has his arm extended towards Keltner's RIGHT SHOULDER. Opposite from firearm --if Keltner has one. You can tell because his hand is obscuring the words on the front of Keltner's shirt.
Dolloff's hand is on the the opposite side of centerline of Keltner's torso as the handgun.
Keltner is initially "squared up" with Dolloff, but after he swings his left hand and hits Dolloff, he's rotated his shoulders 45 degrees with his left shoulder close to Dolloff and ...
his right shoulder father away from Dolloff. That is the movement that brings Dolloff's hand to the left of centerline of Keltner's body from Keltner's perspective. When this is happening Dolloff's head is turned to Dolloff's left by the impact, and he loses his hat and glasses.
Read 4 tweets
6 Oct
Here will be a good test on how SCOTUS is going to address the rampant decisions of district court judges rewriting state election codes. Yesterday an Obama appointee in Arizona rewrote Ariz. registration deadline in a case filed only 6 days earlier.
courtlistener.com/recap/gov.usco…
The decision extends the deadline to register to vote in Arizona by 3 weeks. Several states -- like Arizona -- had statutory deadlines to vote yesterday.
SCOTUS enjoined a South Carolina judge's order with an emergency "Stay" issued yesterday, effectively killing the order.
Depending on how fast the state election officials in Arizona can get their paperwork filed, SCOTUS could issue a similar stay here. That would certainly make a clear statement by the Court.
Read 4 tweets
5 Oct
I think any time you have evidence of "factual innocence" the first thing you do as a prosecutor is to re-evaluate your evidence of guilt. Do you really have a case.
Evidence of "Factual Innocence" is rare. The more common problem is evidence that points towards another -- but is either likely inaccurate, or does not rule out the defendant's involvement. If you have not researched and briefed what is --and what is not--a Brady violation ...
you are likley spreading disinformation. Many THINK they know what it is, and most who think they do get it wrong. A Brady violation occurs when the gov't SUPPRESSES exculpatory material beyond a point in the case when a defendant can make use of it.
Read 5 tweets
5 Oct
When I was a prosecutor, if you wanted to know all the evidence I had against you, I was happy to give it to you -- right after the GJ returned the indictment.
If you wanted a "deal" prior to that, where I agreed to not prosecute you on every crime I thought I could prove, then you gave up some stuff to get that deal. One of the things you gave up was the right to see all my evidence.
Very often, the Pros is still looking at others who might have been involved. Giving up information/evidence to a defendant who pleads guilty ahead of being charged could compromise those additional efforts.
Read 4 tweets
3 Oct
I just can't get my head around the idea -- other than due to inexperience -- that he thought it was enough to ask C&B if they discussed the "conflict" problem with Flynn and he agreed to waive. It's in an email. He simply accepted C&B's representation that Flynn was ok with it.
That tells me he'd never done a 2255 where a defendant raised IAC/conflict of interest, and never researched the foundational principles of the right to counsel free of any conflict. He clearly didn't know that a conflict could only be waived in front of a judge.
And that it could only be waived if the record showed the waiver was "knowing and intelligent" -- which almost always means a non-conflicted counsel has reviewed the matter with the defendant before the waiver is taken. This is a Due Process issue.
Read 4 tweets
3 Oct
I'm not saying he's not worthy of scrutiny, and shouldn't have to explain his decision making. I think that's the microscope he's probably under and has him sitting down with Jensen. I find EXTREME fault in him not calling out the conflict that he was aware of.
I think he realized he might queer the deal if he called out the conflict of interest -- and that was a WRONG decision on his part. 100 out of 100 times I take that issue to the Judge and say "You need to deal with this -- waiver or DQ, one or the other."
The decision to "leverage" a charge-bargain deal out of Flynn, and make part of package "You don't get discovery, admit the false statement from your memory of the conversation" - that's not unheard of. I did similar where I told the defense lawyer "He knows what he said."
Read 4 tweets
3 Oct
You guys don't do "rationality." It is never "black" or "white". VG had the information to work with that he was given. The contents of the 302 are 100% the product of the writer. Who wrote the Flynn 302?? Now consider the "reliability" of the content. THEN...
Divorced yourself from everything you've learned since Mar. 2019.
I spent 22 years as a line AUSA. If Weissmann or Rhee told me to do something that didn't sit right with me I would have treated them like Barnett did -- "fuck off. I'll work on other stuff--good luck."
Look at VG. Joined DOJ in 2010. 4 years as Trial Attorney in NSD. NEWBY. Then one year in a non-litigating job as "Special Counsel". That means he was doing research and giving policy advice to AAG. Then 2 years as Special AUSA in NDVa.
Read 9 tweets
2 Oct
But there is a second angle to this -- the Manafort case. If Flynn had not pled guilty, and raised the "Advice of Counsel" defense re C&B and FARA filing, the SCO would have gone after C&B.
Not to charge them, but they would have tried to litigate an exception to the Attorney/Client privilege and force the C&B lawyers to testify before the GJ. That's why Weissmann did to Manafort's lawyer, claiming Manafort's engagement in fraud waived the A/C privilege.
Manafort asserted the privilege so it had to be litigated, forcing Manafort's lawyer into a terrible situation. Manafort lost, and his lawyer testified before the GJ about their conversations.
Read 6 tweets
2 Oct
That's not "guilt" -- but I think he recognized the mistake he made when he was way more specific than he needed to be in drafting the information and plea agreement. His drafting reflected his inexperience.
The "Information" is just a "Notice" document. The Plea Agreement just reduces the oral agreement with the government to writing. The "guilty plea" is what happens in Court, under oath, and stated orally to the Judge.
The first two did not require the level of specificity that VG employed, and that created a weakness when he conflated "Sanctions" with "Expulsions" in the documents when they were not the same thing. What he wrote in the Sent. Memo doesn't change his mistakes.
Read 4 tweets