Blog Ipsa Loquitur

The federal grand jury convened by Special Counsel Bob Mueller indicted Roger Stone last week. Stone, you’ll recall, is President Trump’s longest-serving political advisor who never officially worked for the Trump campaign because he likes to operate in legal gray areas. You may also recall that we’ve known since Mueller’s July 2018 indictment of Russian spies that Roger Stone is in serious legal jeopardy, because the Special Counsel doesn’t typically quote Twitter Direct Messages unless the parties were into some shady stuff.

Here we are six months later, and the other shoe has dropped. It’s not as bad as I was expecting, but the indictment is still serious: Stone’s charged with one count of obstructing a government proceeding, five counts of making false statements, and one count of witness tampering. If convicted on all counts, he could spend upwards of five years in prison, although he’s more likely to receive a sentence of three to four years. Stone’s younger than Manafort and faces a fraction of the sentence, so we’re not in “dying in a prison cell” territory yet. I wouldn’t bet on Stone flipping against anyone.

The indictment

Right off the bat, the charges are interesting because they relate to the coverup, not the collusion proper. Stone has been indicted for withholding records from Congressional investigators, lying (over and over) to Congress, and tampering with a witness testifying before Congress. Honestly, this indictment is pretty straightforward for the most part. When Stone is tampering with a witness by encouraging him to lie, he quotes Richard Nixon and the movie The Godfather Part II. When that doesn’t work, Stone just starts threatening bodily harm to the witness and his little dog, too. It’s amusing that Stone put all these crimes in writing, but there’s no cool counterintelligence flexing going on here.

That’s not to say it’s boring, though. Like the July 2018 indictment of Russian spies, this indictment offers the briefest glimpses of Stone’s and the Trump Campaign’s conduct (i.e. the collusion). The most tantalizing of these pieces in the indictment is how a Senior Trump Campaign Official was directed in July 2016 to contact Stone about Wikileaks and stolen emails. It’s unclear who on the Trump campaign was senior enough to direct a Senior Trump Campaign Official to contact Stone, but it’s a short list. It should go without saying that whoever that person is is in a lot of trouble. Especially if that person was senior enough to have been in the June 2016 Trump Tower meeting and knew the Russian government was using Wikileaks to disseminate stolen emails.

But fundamentally, this indictment alleges a coverup, not actual collusion. There are a couple of possibilities here:

  1. Bob Mueller isn’t employing any particular strategy here, he’s just indicting all the criminal conduct that comes across his desk. The fact that Stone’s been indicted for lying about his actions but not for The Collusion proves there was no collusion. The legal aphorism “the coverup is worse than the crime” becomes the 28th amendment to the U.S. Constitution.
  2. Bob Mueller, who ran the FBI for twelve years and held a variety of other senior roles in the Department of Justice for roughly another decade, has a strategy for running what might be the single most consequential FBI investigation in United States history.

it’s time for some game theory

I’m being characteristically glib with the first option. It is actually entirely possible that for all the huge red flags and all the circumstantial evidence, no actual crimes were committed by the Trump campaign during the 2016 election. After the election, those campaign officials lied about their sketchy-but-legal behavior; said lies are the only crimes.

As regards the second option, I can’t read Mueller’s mind. But I can point out that defendants have a right to see the evidence against them. Mueller’s been burned by this already; the very first Russian entity he indicted was Concord Management, which employed Russian private citizens to run social media disinformation campaigns interfering in the 2016 U.S. election. After the Special Counsel gave Concord’s lawyers reams of evidence, whoops lol that evidence magically showed up in an October 2018 Russian social media campaign to interfere with the U.S. midterm elections.

Fun fact: the President and three dozen of his associates are in a joint defense agreement; if Mueller were to put all his cards on the table for the first person indicted, that person would tell the rest of the parties what Mueller knows. The three dozen potential defendants would all get their stories straight and strategize about how to fight the evidence they know about. On the other hand, if Mueller charges some guy with seven counts of the coverup and none of the collusion, that defendant only gets to see the evidence of the seven coverup counts. I’d argue that Mueller’s got a pretty good incentive to hide his cards until he needs them.

Now, I’m definitely not suggesting Mueller’s got thirty-six indictments for thirty-six conspirators ready to go, and that Nancy Pelosi is going to be the President by noon tomorrow. That’s a silly conspiracy theory unto itself. All I’m saying is I don’t think the absence of collusion-related charges in any one of these indictments means there’s no There there. Consider that Paul Manafort was indicted three separate times as Mueller sifted through more and more evidence. Consider further that Mueller has thousands of gigabytes of evidence against Stone, which is thousands more than you’d need to show Stone tampered with a witness via text message and lied to Congress a few times.

I don’t know what the endgame looks like, but I don’t think it’s this.

one more thing

I’m reasonably convinced there’s no difference between the investigation for collusion and the investigation for the coverup.

A few weeks back, the New York Times published this bombshell report about the FBI opening a counterintelligence investigation into whether President Trump is a Russian agent. And a few weeks before that, a Times reporter presented Lawfare’s Editor-in-Chief Ben Wittes with the General Counsel of the FBI’s sealed testimony to Congress that the FBI’s investigation of the coverup is about Russian election interference. Now Wittes thinks collusion and the coverup are actually the same thing.

The public understanding of and debate over the Mueller investigation rests on several discrete premises that I believe should be reexamined. The first is the sharp line between the investigation of “collusion” and the investigation of obstruction of justice. The second is the sharp line between the counter-intelligence components of the investigation and the criminal components. The third and most fundamental is the notion that the investigation was, in the first place, an investigation of the Trump campaign and figures associated with it.

These premises are deeply embedded throughout the public discussion. When Bill Barr challenges what he imagines to be the predicate for the obstruction investigation, he is reflecting one of them. When any number of commentators (including Mikhaila Fogel and me on Lawfare last month) describe separate investigative cones for obstruction and collusion, they are reflecting it. When the president’s lawyers agree to have their client answer questions on collusion but draw a line at obstruction, they are reflecting it too.

But I think, and the Times’s story certainly suggests, that the story may be more complicated than that, the lines fuzzier, and the internal understanding of the investigation very different along all three of these axes from the ones the public has imbibed.

The popular conception of Mueller’s investigation—to which I subscribed until recently—has been two separate questions: Q1 was Russian interference and Q2 was collusion between the Trump campaign and Russia. Wittes wants to flip that on its head: Q1 is Russian interference, Q1-a is collusion between U.S. persons and Russia, and Q1-b is the coverup by U.S. persons.

As Wittes points out, plenty of commentators (such as Bill Barr, the future Attorney General) argue the President is incapable of committing the crime of obstruction of justice, because as the chief executive of the United States, he has ultimate discretion over all criminal investigations. Under that theory, ordering FBI Director James Comey not investigate Russian election interference and firing him when he continued to investigate is legal in the same way that shaving your beard isn’t assault because it’s your beard. It’s your FBI, they argue.

That view assumes the coverup is a standalone crime, whereas Wittes points out why the FBI might be treating it quite differently:

But what if the factual premise is more complicated than that? What if the pattern that jumped out at the FBI officials was that the President of the United States had just sought to interfere in an investigation of Russian intelligence activity and then boasted on television that his action was connected in some way to the Russia probe? What if the FBI knew that by the time he did so, the president had drafted a never-sent dismissal letter to Comey, and this letter also made clear that the Russia probe was on his mind at the time he acted?

The facts actually got worse over the next few days. Because even as the bureau was beginning its obstruction inquiry, Trump boasted about his action to the Russian foreign minister and ambassador, saying he had relieved pressure on himself by taking it.

If that’s the case, the coverup isn’t just a way for the President to keep his large adult son from going to prison, the coverup is a way for Russia to prevent the FBI’s counterintelligence operation from investigating, uncovering, and exposing the nature and extent of the election interference. The President can theoretically shut down any criminal investigation he likes, can he shut down a counterintelligence operation into whether the President is a Russian agent?

That’s a whole new kind of gray area.

Published on under Leave No Stone Unindicted

Buzzfeed News on how algorithms designed to increase engagement at all costs end up sending users to bizarre conspiracy theories:

How many clicks through YouTube’s “Up Next” recommendations does it take to go from an anodyne PBS clip about the 116th United States Congress to an anti-immigrant video from a designated hate organization? Thanks to the site’s recommendation algorithm, just nine.

The video in question is “A Day in the Life of an Arizona Rancher.” It features a man named Richard Humphries recalling an incident in which a crying woman begged him not to report her to Border Patrol, though, unbeknownst to her, he had already done so. It’s been viewed over 47,000 times. Its top comment: “Illegals are our enemies , FLUSH them out or we are doomed.”

The Center for Immigration Studies, a think tank the Southern Poverty Law Center classified as an anti-immigrant hate group in 2016, posted the video to YouTube in 2011. But that designation didn’t stop YouTube’s Up Next from recommending it earlier this month after a search for “us house of representatives” conducted in a fresh search session with no viewing history, personal data, or browser cookies. YouTube’s top result for this query was a PBS NewsHour clip, but after clicking through eight of the platform’s top Up Next recommendations, it offered the Arizona rancher video alongside content from the Atlantic, the Wall Street Journal, and PragerU, a right-wing online “university.”

It’s not just an anodyne TV clip from PBS; Buzzfeed News documents step by step what happens after you finish watching a video. Even with a fresh user account that YouTube’s never seen before, the algorithm steers people down bizarre political conspiracy theory rabbit holes. When asked why, the YouTubes and Facebooks of the world say ‘ah, you see, but this content does not violate our community standards and also we are an international media company who cannot be certain whether VP Mike Pence is a time-traveling lizard Nazi or not.’

Which is why I’m glad Buzzfeed News also catalogued how many videos YouTube recommended for a while before deleting.

The platform does, at least, seem capable of finding and removing it — though not, it would seem, until after its own recommendation system has helped these videos accrue tens of thousands of views. Clearly, the people behind these channels have figured out how to game YouTube’s recommendation algorithm faster than YouTube can chase them down, leading the company to recommend their pirated videos before imminently deleting them.

I’m not sure if “eventually deleting” is an improvement or not, but I hope YouTube can figure this out before it turns us all into unhinged conspiracy theorists.

…unless they want us to be conspiracy theorists?

Published on under Like Subscribe and Follow the White Rabbit

While we’re all enjoying the three weeks during which the federal government is funded, here’s Paul Kafasis getting hung up on what might be the most important ‘dispatch from a red state’ piece the New York Times has done since the election:

Earlier this week, I read a New York Times piece on the small Florida town of Marianna, and how it was being affected by the on-going federal government shutdown. The story ended with this quote: “I voted for him, and he’s the one who’s doing this,” she said of Mr. Trump. “I thought he was going to do good things. He’s not hurting the people he needs to be hurting.”

The utter awfulness of that line has been stuck in my head ever since. The initial reaction to this should be obvious: The president of the United States doesn’t need to be hurting anyone. That’s not the job, and if you think it is, something is deeply, sickeningly wrong with you.

And yes, Paul ends with the “leopards eating peoples faces party” tweet.

Published on under We Are Never Ever Getting Back At Leopards

Last week, Google’s CEO Sundar Pichai testified before the House Judiciary Committee. By now, you’ve probably heard it didn’t go well. Texas Rep. Ted Poe was one of several committee members who brandished an iPhone and asked the Google CEO questions about whether they were tracking his phone. Buzzfeed’s Charlie Warzel asks What Was The Point Of Google’s Congressional Hearing?

Take Poe’s question. Its topic — data privacy and location tracking — is important, but the wording was unartful, and it revealed, immediately, a poor understanding of the workings of the technology to which it referred. Conversely, Pichai’s answer seemed to purposefully ignore the spirit of the question, focusing on semantics instead of a reasonable answer. (For example: “While I don’t know the particulars of your device, yes, many Google apps track granular location information.”) The end result? Nothing worthwhile.

Instead the roughly 210 minutes of hearing testimony were mostly devoted to shallow questions from lawmakers about political bias. Ohio Rep. Jim Jordan devoted five minutes to asking about an email from a marketing executive at Google, grilling Pichai about individual employee efforts to help mobilize Latino voters. Rep. Lamar Smith spent his time spent his time citing studies with dubious methodology (the report’s author previously noted her methods were “not scientific”) alleging a deep political bias in Google’s news results. Rep. Steve Chabot, an Ohio Republican, complained anecdotally about search results, claiming he only saw negative stories about his party’s Affordable Care Act repeal bills, suggesting a nefarious anti-conservative bias. Meanwhile, Rep. Steve Cohen, a Tennessee Democrat, used part of his five minutes to bemoan the Google search results for his own name — suggesting the search engine has a pro-conservative bias. In one instance, Iowa Rep. Steve King asked if Pichai would release the names of Google’s search engineers so they could be independently investigated for their own political beliefs.

Imagine having the power to force gigantic technology companies to answer for their failings, and choosing “sometimes when I look up my name I don’t like what I see” as your cause. And I know the Judiciary Committee isn’t necessarily equipped to handle issues of cutting-edge technology, but at this point it’s an issue for all of us, not just the nerds.

Published on under There Is No Point

This Vox piece by Rachel Sugar is near and dear to my household. It’s an interview with psychologist Barry Schwartz on the allure of a doomed mission: The quest for the best.

Given that we live in a consumer culture where you can get anything — a T-shirt, fancy whiskey, blood pressure medication — delivered to your door within hours, it is surprisingly difficult to buy things.

Do you want jeans? What type of jeans do you want? Will those jeans look good on you? Why didn’t you buy jeans that look better? Also, isn’t $148 a lot to pay for jeans? Maybe they’ll go on sale later. Maybe you’ll find better jeans if you try harder. All you want is the best jeans, and is that so wrong?

Yes, psychologist Barry Schwartz famously argued in The Paradox of Choice: Why More Is Less, his 2004 opus exploring why, if we love choices so much, an ever-growing number of them seems to be making us miserable.

This is part of the same Vox series as the “the men’s razor industry has gone bonkers” piece I liked last week. But the reason this story lands like a bombshell for me is bits like this:

According to him, the world is, very roughly, divided into two types of people: satisficers, who can be content with a good-enough thing — they’re perfectly fine pants, let’s move on with our brief lives — and maximizers, who can’t call off the search until they’re certain they’re getting not just a good thing but the best.

And here I’ve been dividing the world between chaos and order muppets. This makes at least as much sense.

Published on under All Muppets Are Chaos Muppets

The New York Times’s Rachel Abrams and John Koblin reporting on how CBS Paid the Actress Eliza Dushku $9.5 Million to Settle Sexual Harassment Claims is, in many ways, the least surprising story you can imagine. A TV show where the main character is a libidinous man (CBS advertises the show with the tagline “He’ll get you off!”) has an on-set environment resembling a fraternity house as much as anything else. When a new actor joins the show, she points out inappropriate behavior and is swiftly fired. Tale as old as time, song as old as rhyme, etc.

But Dushku’s story is hilarious for one specific reason that I’m so, so glad made it into Abrams and Koblin’s story. After paying Dushku nearly $10 million to not sue, CBS launched an investigation into what exactly happened. Here’s how the Times describes the draft report from that investigation:

After considering a lawsuit, Ms. Dushku entered into mediation with CBS. Mark Engstrom, the chief compliance officer at CBS, participated, along with Bettina B. Plevan, a partner at the law firm Proskauer Rose, who was serving as outside counsel for the company.

Mr. Engstrom handed over outtakes from “Bull” in the belief that they would help the company’s cause, because they showed Ms. Dushku cursing on the set, investigators wrote in the draft of their report.

The strategy backfired. The outtakes were a “gold mine” for Ms. Dushku, the lawyers wrote, because they “actually captured some of the harassment on film.”

Although the investigators praised Mr. Engstrom for his “tremendous institutional knowledge” and described him as a “smart and very capable lawyer,” they said the company’s failure to recognize the instances of harassment caught on tape was a symptom of larger problems at CBS, according to the draft of their report. Mr. Engstrom declined to comment.

This is absolutely amazing. You have video evidence of the harassment occurring! Even if you think women like to make up instances of sexual harassment to complain about (hint: they don’t), you don’t have to take Dushku’s word against anyone else’s. You watched the sexual harassment happen on video! You know it happened! And then you gave that video to the harassed person’s lawyers thinking it was exculpatory because their client used a bad word.

You know, if CBS is looking for someone to help figure out if certain behavior is inappropriate, it seems like Eliza Dushku is at least as good at it as the folks they’ve got working on it right now. Oh, and what a coincidence: she’s unemployed at the moment, too. Win-win!

Published on under Doesn’t Look Like Anything To Me