Blog Ipsa Loquitur

Yes, I did all read all 13,000 words of the New York Times’s unbelievable investigative report: Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father. What the Times found was what some folks had suspected for years: the President is less a master of the art of the deal and more a master of inheriting a real estate empire from his father. The President, with all the self-assuredness of a playground bully, responded to the report by calling it “defamatory” upon its publication, “misleading” later that night, and “often told” the following morning. As David Frum pointed out, the President’s responses “are rapidly evolving from denial to acknowledgment” of the substance of the report.

That’s all well and good. The person whose presidential campaign sounded like a con man’s has apparently been a con man for his entire life. It’s always nice to have your priors confirmed.

But the most interesting part to me isn’t what the Times learned but how they learned it.

Published on under BYO Tin Foil, Folks

We’re days away from the floor vote to determine whether Brett Kavanaugh will be the newest justice on the Supreme Court, and here’s the best of what I’ve read about last week’s hearing. Professor Rebecca Hamilton, writing for NYU Law School’s Just Security blog:

Dr. Christine Blasey Ford threw her life into turmoil yesterday to testify before the nation. Asked by Sen. Dick Durbin (D-Ill.), with what degree of certainty she believed that Judge Brett Kavanaugh assaulted her, she responded: “One hundred percent.” Every senator voting to confirm Kavanaugh to the Supreme Court should be pushed to answer one question: Do you believe her? […]

Testimony is evidence. If Ford is credible, as she is largely acknowledged to be, her testimony should be given the evidentiary value it deserves. In most U.S. courts, credible testimony alone can be enough for a criminal conviction. And for good reason. In sexual assault cases, the perpetrator and the victim are often the only ones present at the scene of the crime. If credible victim testimony did not stand as evidence, then there would be even less justice for survivors of sexual assault than there is already. (Also important to keep in mind, is that confirmation hearings are about assessing the fitness of a nominee – a task involving a significantly less demanding standard of proof than that required in a criminal, or even civil, trial.)

There are a really important few points going on here, on two different bits of the law. The first is that the things that witnesses (including victims) say is evidence. Juries are charged with determining what happened. Each side presents evidence of what happened, in the form of records and testimony, and the jury has to figure out who to believe about what. Defendants can be convicted on the testimony of a single witness, if the jury finds that witness credible enough.

The second point is the standard of proof. In a criminal trial, the defendant is innocent until the government proves his guilt beyond a reasonable doubt. That doesn’t mean the jury is 100% certain the defendant is guilty, but it does mean something like 95% or 98% certain; the only doubts the jury has are unreasonable doubts, like an evil doppelgänger or time-traveling super villain framed the defendant. If I’m ever on a jury, and that’s my only doubt, I might be comfortable voting guilty.

In a civil trial, the defendant isn’t going to prison no matter how poorly they defend themselves, so the standard of proof is lower. Civil cases are things people sue one another over that aren’t necessarily against the law, like breach of contract, or slandering one another. A civil plaintiff wins if they demonstrate by a preponderance of the evidence that the defendant is liable for whatever lousy thing the two sides are fighting over. As Black’s Law Dictionary puts it: “the jury is instructed to find for the party that, on the whole, has the stronger evidence, however slight the edge may be.” That’s not 98% or even 60%: the preponderance of the evidence standard is literally the tiniest quantum of proof beyond 50%.

And this is Professor Hamilton’s final point, which I think a lot of folks are gliding right past: this isn’t a trial. “Innocent until proven guilty” is for criminal trials, and “he’s more likely to be telling the truth” is for civil trials. This is a Senate Judiciary Committee deciding whether or not Judge Kavanaugh is fit to receive a lifetime appointment on the Supreme Court. The standard is way lower than in a trial – any trial. And as we’re about to see, it’s not just the sexual assault claims that make this guy unfit.

Save your fork; there’s lie

Nathan J. Robinson’s 10,000 word epic on why Kavanaugh should not serve another day as any kind of judge  covers all the dodges and misdirections and white lies in Kavanaugh’s testimony. No, really, all of them. It’s the most detailed deconstruction of the problems with Kavanaugh’s testimony you can find:

He went before the United States Senate and showed total contempt for his vow to tell the truth. He attempted to portray a highly esteemed doctor as a crazy person, by consistently misrepresenting the evidence. He treated the public like we were idiots, like we wouldn’t notice as he pretended he was ralphing during Beach Week from too many jalapeños, as he feigned ignorance about sex slang, as he misread his own meticulously-kept 1982 summer calendar, as he replied to questions about his drinking habits by talking about church, as he suggested there are no alcoholics at Yale, as he denied knowing who “Bart O’Kavanaugh” could possibly be based on, as he declared things refuted that weren’t actually refuted, as he claimed witnesses said things they didn’t say, as he failed to explain why nearly a dozen Yale classmates said he drank heavily, as he invented an imaginary drinking game to avoid admitting he had the mind of a sports jock in high school, as he said Ford had only accused him last week, as he responded to his roommate’s eyewitness statement with an incoherent story about furniture, as he pretended Bethesda wasn’t five miles wide, as he insisted Renate should be flattered by the ditty about how easy she was, as he declared that distinguished federal judges don’t commit sexual misconduct even though he had clerked for exactly such a judge.

But for my money, Robinson’s point on why this high school stuff is so relevant is his best argument:

Some Republicans tried to suggest that scrutiny of Kavanaugh’s yearbook was grasping at straws. Here we are trying to make sense of nonsense scrawlings from some silly kids in a musty old book. Here’s Lindsey Graham: “if we want to sit here and talk about whether a Supreme Court nomination should be based on a high school yearbook page, I think that’s taken us to a new level of absurdity.” But as with Ford’s allegation itself, what’s relevant is not just what happened then but what is happening now: Kavanaugh is lying. The evidence from the yearbook bears on the credibility of his statements about his character in high school, and Kavanaugh himself made his character a central part of his defense and his argument for why Ford should not be believed. Kavanaugh’s supporters can play dumb and suggest examining the yearbook is absurd, but being in the keg club and objectifying and demeaning women is evidence that his “I was always either at the soup kitchen or buried in my schoolbooks” defense is an act.

Realistically, I understand why Kavanaugh lies constantly. If he admits to binge drinking until he blacked out, there are episodes he by definition won’t be able to remember. Mounting a defense when you don’t know your own alibi sounds pretty tricky. Instead, Kavanaugh has to lean on this ‘choir boy’ defense, but that involves all sorts of lies that don’t pass the straight face test. He left quite the paper trail of his youthful indiscretions: now, his explanation for his famously weak stomach, devil’s triangle, and Renate Alumnius are all absolutely ridiculous.

And here’s the thing: remember how witness testimony is evidence? If there are only two witnesses, and one lies constantly about all sorts of ridiculous and demonstrably false stuff, while the second witness… doesn’t, how do you think the evidence shakes out? When the witnesses disagree, which one would you believe?

a vast left wing conspiracy

Even if you think Kavanaugh’s telling the truth about his teenage years (he’s not), and even if you didn’t find Ford’s testimony compelling (it was), there are other reasons the Senate might not approve Judge Kavanaugh. Compare the Chief Justice Roberts’s “aw shucks, Senator, a judge is like an umpire: you don’t take sides, you just call balls and strikes” with whatever the heck this is:

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation,” [Kavanaugh] said. He referred to Democrats calling him “evil.” Then he turned directly to Democratic senators on the committee. “You sowed the wind,” he said, and “the country will reap the whirlwind.” He accused Democrats of “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” He even suggested it was “revenge on behalf of the Clintons” — referring to his work on special counsel Kenneth Starr’s investigation of the Clinton administration in the 1990s. Later, he later directly addressed the senators again. “Thanks to what some of you on this side of the committee have unleashed,” he said, gesturing to his right, “I may never be able to coach [girls’ basketball] again.” He added that he loves teaching law at Harvard University, but “I may never be able to teach again.”

He’s in a league of his own.

Published on under No, I Am Bart O'Kus

The Cut has a fantastic excerpt from Rebecca Traister’s forthcoming book “Good and Mad” – the except is titled And You Thought Trump Voters Were Mad: American women are furious — and our politics and culture will never be the same.

The idealized vision of what this country might be was born of the virtuous, and sometimes chaotic, fury of the unrepresented. We are taught it as patriotic catechism — give me liberty or give me death; live free or die; don’t tread on me. We carve our Founders’ anger into buildings, visit their broken bells, name contemporary political factions after the temper tantrums they threw, dressed in native garb, dumping tea in a harbor. We call these events a revolution.

This is the anger of white men, of course. Their anger is revered, respected as the stimulus for necessary political change. Because they’ve always been the rational norm, the intellectual ideal, their dissatisfactions are assumed to be grounded in reason — not the emotional muck of femininity. (This isn’t just in the past. Think about how the anger of white men in the Rust Belt is often treated as politically diagnostic, as a guide to their understandable frustrations: the loss of jobs and stature, the shortage of affordable health care, the scourge of drugs. Meanwhile, the Movement for Black Lives, a response to police killings of African Americans initiated by women activists, is considered by the FBI to pose a threat of “retaliatory violence” and discussed as a “hate group” by Meghan McCain.)

The whole thing is beautifully written, and it’s striking and more than a little depressing that after two hundred years of this, women are still fighting the same fights. This time might really be the start of something new: polls have suggested for months that women are abandoning the Republican Party in record numbers. November sure is going to be interesting.

Published on under We Are All Furiosa Now

On Friday, twenty members of Special Counsel Bob Mueller’s team walked into a federal courtroom in Washington, D.C. with Paul Manafort. The attorney who the New York Times described as “Mueller’s Legal Pit Bull” spent thirty minutes detailing the charges against Manafort, who pleaded guilty to two conspiracy charges and signed a cooperation agreement with the Special Counsel’s Office (SCO). This agreement requires Manafort to give interviews and briefings to the SCO, turn over any documents he has to them, and testify in other proceedings on their behalf. We’ll get into that.

Manafort was indicted alongside his business partner Rick Gates a few times, most recently in February 2018, and while Gates began cooperating almost immediately thereafter, Manafort held out for more than six months. The SCO piled dozens of charges on him—successfully convicting him of eight felonies in a Virginia federal court—and was days away from prosecuting the second trial by the time Manafort pleaded guilty.

This is huge, right?

Yeah, this seems pretty huge. We don’t know exactly what the SCO is thinking, but they’ve put a lot of effort to get Manafort to flip. That suggests they think Manafort has lots of information that would be helpful to the investigation into the Russian interference in the 2016 election. And if you read the plea agreement Manafort just signed, he seems to believe he has some pretty valuable information, too. It’s not impossible that both parties are mistaken about what the other thinks. This sort of thing happens sometimes.

But I’m gonna Occam’s Razor this one: Manafort, the shadowy political operative for pro-Russian interests and whose top lieutenant was “Kostya from the GRU” and who owed millions of dollars to Bad Dudes In Russia, joined the Trump campaign within days of the GRU beginning its spearphishing campaign of the Clinton campaign. Manafort is later promoted to chairman of the Trump campaign two weeks after the infamous Trump Tower Meeting With All The Russians. That’s right about the time the Russians start dripping emails out for the rest of the campaign. Oh, and at no point during any of this does Manafort—again, millions of dollars in debt to Bad Dudes In Russia—take a paycheck from the Trump campaign.

You don’t need a security clearance or a J.D. to read that paragraph and see why the SCO wants to chat with Paul Manafort. But let’s take a closer look at what just happened.

Published on under Merry Flipmas, Everyone

The New Yorker’s Ian Parker wrote an exceptional profile of Glenn Greenwald for the September 3 issue. The full title of the profile is “The Bane of Their Resistance: a leftist journalist’s bruising crusade against establishment Democrats—and their Russia obsession.” Greenwald is a smart guy who doesn’t buy into the conspiracy theories of Russian election interference and collusion between the spies and the Trump campaign. For a long time, he seemed to reject the idea that Russia had done anything to the 2016 election; in this profile, it sometimes appears he thinks Russia didn’t do anything wrong.

“We have, all the time, different levels of evidentiary certainty based on the context, based on the role that we’re playing,” Greenwald said. To allege Russian interference in 2016 was to levy a charge against “a longtime adversary of the United States, one that is still in possession of thousands of nuclear weapons aimed at American cities.” He continued, “Before we all accuse that country of having done something so grave as have its leader order the hacking of these e-mails in order to interfere in an election, I think the evidence we demand ought to be pretty high.”

Was the charge “grave”? He had just called it the stuff of everyday international relations. “I personally don’t think it’s grave,” he said. “But there are millions of Americans who believe the election of Trump is this grave threat. So if you convince them that what has endangered them is Putin—you hear Democrats comparing this to 9/11 or Pearl Harbor—that’s really dangerous rhetoric. I don’t think it’s particularly grave at all, even if it’s true. I think it’s a very pedestrian event.” The risk, then—one also identified by President Trump—was that unfounded American hysteria could set off a nuclear war. Put another way: the choice is between Greenwald and the end of the world.

He later said, “If there was evidence inside the U.S. government that genuinely proved collusion—an intercepted call, an e-mail—it would have been leaked by now.” (He seemed to be disregarding the discipline displayed by Mueller’s investigation.) He added that, even if Putin himself had ordered the hacking, “and worked with WikiLeaks and Michael Cohen and Jared Kushner to distribute the e-mails,” then this was still just “standard shit.”

Now, I really do understand the disdain for the newfound liberal pastime of finding Russian machinations at the center of everything. The market for red yarn has never been better on this side of the political spectrum. And Greenwald quite correctly spends a bit of this profile pointing out how unhinged those theories can get.

But that section quoted above is just an incomprehensible argument! ‘The specter of Russian election interference or Trump campaign collusion is such a grave accusation that we need lots of evidence. However, even in the worst case scenario, The Russia Stuff is still just “standard shit.” Further, there can’t be any real evidence to support the grave accusation, because if there was lots of evidence we’d have seen it already. Therefore, we can safely assume the grave accusations are simply not true.

Maybe for Greenwald the gravest stuff is the unhinged theories like “The Marshall of the Supreme Court has put Melania into witness protection because Russian special forces are going to Die Hard all the various Trump Towers to steal the deed to Mar-a-Lago and also Putin personally filmed the pee tape.” But from where I’m sitting, the standard shit looks like an unprecedented international conspiracy to defraud the United States. (The kind in 18 U.S.C. § 371, not the red yarn kind.) The evidence is in the form of two-plus years of dissembling and contradictory cover stories from a range of campaign and administration staffers, not least the President himself.

Published on under Staring into the abyss

Gizmodo’s Kashmir Hill on what happens When a Stranger Decides to Destroy Your Life. This is the story of a real estate agent named Monika Glennon who was the subject of a years-long harassment campaign after getting into a disagreement with a stranger on a local newspaper’s Facebook page:

There is a constellation of sites on the internet that exist solely as places for people to exorcise their demons, and more importantly, their grudges; She’s A Homewrecker is one of them. It offers the opportunity to publicize a person’s misdeeds so that they are available not just to an inner circle with access to relevant gossip but to anyone who Googles that person’s name. The terms of service specify that posts must be factually true, but if they’re not, it’s not a problem for the site. It’s protected by Section 230 of the Communications Decency Act, which protects websites from being sued for the things their users say. […]

Glennon wrote repeatedly to all the sites that had posted the story telling them it was false but none of them would take it down. Her only option was to go to court, so she filed a lawsuit in 2016 against John Does, alleging libel and copyright infringement, because the post used her professional headshot, which she had ownership of.

Through the suit, Glennon was able to subpoena She’s A Homewrecker and Facebook for IP addresses, as well as Internet Service Providers to find out the identities of the people behind the IP addresses. A couple of months after she filed the suit, yet another post appeared on yet another site, “Report My Ex,” written by a man claiming to be the husband who had cheated with Glennon, again luridly detailing a sex act that never happened.

Firstly, thank goodness for Facebook and its mission to connect the world more than ever before. I mean, in 1990, if you wanted to destroy a stranger’s life, you’d have to look them up in the phone book and then go make some flyers or something. Clearly, connecting more people together is an objectively benign goal, and nothing bad comes from this.

Secondly, it’s remarkable that there’s a network of sites devoted to facilitating this kind of gossip. I’m struck by the fact that the most effective legal remedy people like Glennon have is a copyright claim. What if the harassers hadn’t used her headshot?

Published on under Stranger Things