Unpublished Op-Ed

Mark Kleiman and I wrote this in February 2017, but never had it published. I thought that it might be worth posting at this time.

Some Words of Advice for Federal Employees

Receiving directives inconsistent with good government – if not worse – creates one of the most difficult situations a civil servant can face. As former Justice Department staffers, we have some advice to offer Federal employees when such situations arise, as they seem likely to do often under the current regime.

1.       When told to implement a policy that is counter to statute, regulation, or the stated and authorized goals of the agency, take good notes; such directives rarely come in writing. Then go back to your office and write down your understanding of the recommended policy, making sure you have correctly described what you were told. Then send that account as a memo to your superior.

2.       Whether or not you receive a reply, follow up with a detailed list of issues and concerns, both pro and con, involved with proposed policy or action. Describe them in full context and cite the relevant legislation, executive orders, and constitutional issues. Send that, too, up the chain of command.

3.       You may also be at the receiving end of threats or other problematic situations that are meant to intimidate you. Write a memo to yourself and share it with a trusted friend as soon as possible, to establish a time line.

4.       Do not use your office phone or computer (or cell phone while in the office) for personal reasons, least of all to complain about these situations, as this may open you up to attack. If your agency expects you to be available for phone calls and text messages around the clock, get a cell phone that you use only for official business. You might want to use a text messaging app that encrypts the message, and ask your recipients to do the same.

5. Maintain a contemporaneous, written log on a ruled ledger with a sewn binding, so removal of any page will show. Enter every meeting, call, and significant email on successive lines in ink, leaving no spaces. Fill in any space on the right with a slash, so nothing can be added. Note the date, time, attendees, subject, and conclusions. Absent minutes, no one else will remember what happened a day later, so your record will become dispositive. This approach, laborious though it is, can provide valuable protection for anyone from a GS-1 to a cabinet officer.

6. If you decide to talk to a reporter, get the ground rules clear first. “On background” means you can’t be identified, but your agency can; “deep background” means that even your agency isn’t mentioned.  Any communication to the press about official business not previously cleared by your agency’s public information office will probably put you out of bounds; consider whether you’re willing to take the consequences. If you’re later asked about whether you were the source of a story, either tell the truth (and be prepared to find a new job) or refuse to answer.

There are already reports that White House Chief Strategist Steve Bannon has taken steps to erase the paper trail behind various Executive Orders. All the more reason for career civil servants and the political appointees more loyal to the country than to the ruling cabal to make as much of a record as possible.

Michael Maltz is Emeritus Professor of Criminal Justice and of Information & Decision Sciences at the University of Illinois at Chicago. He was a research analyst with the National Institute of Law Enforcement and Criminal Justice during the Nixon administration and had to deal with some questionable directives.

Mark Kleiman was Professor of Public Policy at the New York University Marron Institute of Urban Management. He served as Director of Policy and Management Analysis for the Criminal Division in the Carter and Reagan Administrations, never receiving an improper order.

Justice Department releases FISA warrant applications on Carter Page

My quick analysis:
400-something pages, mostly redactions, and the rest mostly boilerplate that gets repeated from application to application.
Still, what’s left is interesting. And, naturally, the documents make complete nonsense of the conspiracy theory Devin Nunes and his House Intelligence Committee Republican colleagues have been pushing.
Everything about the Steele Dossier - including Steele’s decision to talk to the press just before the election - was fully revealed to the court, and there was plenty of non-Dossier support for the idea that Page was acting as a Russian agent. Moreover, the extension applications continue to recite that the Bureau believes “Source 1’s” (that is, Steele’s) “reporting herein to be credible.” If the wiretaps conducted under the warrant had in any way disconfirmed Steele’s material, the Bureau could hardly continue to recite that Steele’s reporting was credible.
First application in October 2016, extended January, April, July. (90 days is the limit for a FISA warrant; an extension requires a new application.
Each application is signed by the FBI Director and the Attorney General (or substitute after the Sessions recusal). October and January applications are signed by Sally Yates as AG.
Last two are signed by Boente (April) and Rosenstein (July). Comey signs as FBI Director the first three times; Wray signs in July.
[Footnote: I was close to the parallel process for wiretap applications, requiring sign-off by an Assistant Attorney General. That was taken enormously seriously, the signature was not a rubber stamp. Each application was read in detail by someone on the AAG’s personal staff, and more than one application was sent back or refused outright. Hard to believe FISA applications aren’t taken comparably seriously.]
Presumably much of the redaction is about the product; every extension has to show that the previous 90 days were productive. The Times counted pages: 66 pages  in the original, while the extensions counted 79 pages, 91 pages and 101 pages, suggesting that there was significant product. But that was already clear from the fact that the extensions were requested and granted. Courts frown on continuing to drill dry holes.
Basis of the first application was the FBI belief that Page was “collaborating and conspiring with the Russian Government” and that “the Russian Government’s efforts [to mess with the campaign] were coordinated with Page and perhaps other individuals associated with Candidate 1 [Trump]
Can you say “No collusion”? I was sure that you could.
Update: Leah McElrath points out that this assertion - like the assertion of the reliability of Steele’s reporting - is repeated verbatim in the three extension applications, which it couldn’t be if the wiretaps had failed to confirm it. More detail from Twitter account @PwnAllTheThings.
The application recites that Carter was a knowing intelligence agent, recruited by three named SVR officers acting under Non-Official Cover, one of whom, Buryakov, was arrested in January 2015 and pleaded guilty to a violation of the Foreign Agents Registration Act (FARA) by acting as an unregistered foreign agent in May 2016, getting 30 months.
Page’s mission is said to have been “clandestine intelligence activities (other than intelligence gathering activities).” If that applied to Buryakov, that might explain why he was charged with a FARA violation rather than the more serious charge of espionage.
Comic relief: In February, 2017, Page asks the Voting Rights Section of the Civil Rights Division to investigate whether the Clinton campaign had engaged in “severe election fraud”  involving “disinformation, suppression of dissent, hate crimes, and other extensive abuses” by saying mean things about Page.
Conclusion: The warrant was issued on the basis of the FBI’s belief that Carter Page, a Trump adviser, was knowingly working for the Russians, and that other Trump campaign personnel might be doing the same. It was then extended three times, strongly suggesting that the taps yielded, and continued to yield, valuable counterintelligence. And the terms of those extension applications strongly suggest that the Steele Dossier, and the claim that Page was conspiring with Russia to help Trump, kept looking good.
It gets harder and harder to credit the good faith of anyone who still insists that there is doubt that Russia, as a matter of national policy, interfered with the 2016 election to secure victory for its favored candidate, and that at least one Trump campaign official knowingly helped.

Cross-border election meddling and “whataboutism”

The Russian government intervened, overtly and covertly,  in the 2016 U.S. elections to damage Hillary Clinton and help Donald Trump. Whether the primary goal of that activity was actually to elect Trump, or instead merely to weaken Clinton in the event of her expected victory, isn’t really an answerable question.

The obvious things to say about this are:

  1. That was a wicked thing for Putin & Co. to do.
  2. Encouraging that help, accepting it, exploiting it, and subsequently covering it up was and is a wicked thing for Trump & Co. to do. It should mark everyone who engages in it and defends it as profoundly disloyal, and make all of them political pariahs.

The defenders of Putin and Trump make four responses: Continue reading “Cross-border election meddling and “whataboutism””

We thought it could never happen. That’s what happened.

I’m listening to Hillary Clinton’s book on my commute. Its publication brings back the usual debates about how Donald Trump was able to win the Presidency, given his obvious, comprehensive unfitness for the position.

How did that happen? When I was asked to give odds before Election Day, I always quoted Nate Silver’s estimates. I said there was a one in six chance Trump could win.*** In my bones, I never really believed the risk was that great. Most people I knew-with the notable exception of Keith Humphreys-felt the same way. That’s how it happened.

The biggest single factor in President Trump’s upset election victory was the collective sense that Hillary Clinton couldn’t possibly lose. That conviction in our bones-that the unthinkable outcome was really impossible-freed everyone, across the political spectrum from doing their part to prevent the national catastrophe that actually ensued.

That complacency freed unenthusiastic voters who despised Trump to stay home or cast protest votes. It freed Clinton and her team to run a less-urgent, less-effective campaign than they might have been. It freed Bernie Sanders not to do everything he might have done to rally his supporters on Clinton’s behalf.

It freed the media to cover her as the presumptive President, to ridiculously over-hype the email scandal, to treat Trump as a clownish and entertaining side-show, to give him free air time, to hire dishonest Trump spokesmen as cable news talent, to take refuge in bromides about the two-party duopoly and both-siderism. Hillary Clinton deserved criticism and scrutiny on many fronts, particularly her decisions regarding the lucrative speeches. She is absolutely, absolutely correct to lambaste the New York Times, Matt Lauer, and other media outlets for terrible and consequentially biased campaign reporting.

That same complacency freed folk on the left to snipe at her without worrying that this would influence the contest. It freed many in the political right and center to avoid mobilizing around Hillary although they knew perfectly well that Trump was a threat to the nation. It freed President Obama to be less aggressive than he might have been in addressing Russian interference in the election. It freed FBI Director Comey to behave as he did, excessively upbraiding Hillary Clinton even as he (perhaps appropriately) shielded much more serious investigations of the Trump team from public view. It freed all of us to be more passive and not to do as much as we might have done to help her when things got close.

As it turned out, most of us overestimated the impact of Trump’s comprehensive unworthiness to impeach him among key Republican-leaning voters. We underestimated the impact of Trump’s racism, sexism, and other bigotries to specifically validate him within another key group of Republican-leaning voters that was larger than many of us expected.

That left a hole, not as deep as a well nor so wide as a church-door, but enough.

***Dina Pomerantz reminds me over Twitter that Nate Silver on Election Day had given Donald Trump an almost-thirty-percent chance of winning. Indeed Silver and the Atlantic’s Ron Brownstein anticipated with great insight precisely the dangers Clinton faced in the battleground states. I would tell people one-sixth because I believed the hype that Clinton’s campaign possessed superior analytics and a better ground-game. Ah, those were the days. 

A long-overdue letter to the editors of the New York Times

I wrote this today in response to an editorial decrying “Two Presidential Candidates Stuck in the Past.”

Thank you so much for continuing the Times’s pattern of false equivalence between Donald Trump and Hillary Clinton which did so much to elect the former and besmirch the latter. Trump’s pathological need to tell whoppers at campaign rallies instead of governing is not at all the same as Clinton’s factual answers to a reporter’s questions. There is no doubt that James Comey’s October surprise re-opening of the e-mail investigation damaged her election prospects, nor is there any doubt that Russia interfered on her opponent’s behalf, though direct complicity by the Trump campaign has yet to be proven.

The editors’ instruction to Clinton to stop talking about the election sounds a lot like, “Women should be seen and not heard.” I look forward to your issuing a similarly stern warning to Bernie Sanders, who continues to peddle his fraudulent claim that Clinton “stole” the primaries by defeating him. Until you do, I’d be grateful if you’d stop pretending that Clinton’s telling the truth is somehow the same as Trump’s lying.

Wish I’d Written This

A post from a friend, John Watters:

Imagine this scenario:

Hillary Clinton is president. It’s learned that she has deep ties to Putin and the Russian spy agency. She puts unqualified billionaires in cabinet posts. She pursues public policies that benefit her and her billionaire friends. She puts her daughter Chelsea in a position of influence in the West Wing, gives her her own office and allows her to use that position to forward her own business interests. And Chelsea’s husband is her chief advisor. The private business trips taken by Chelsea and her husband are paid for by the taxpayers.

She refuses to release any tax returns, she blocks access to the visitor logs in the White House and Bill refuses to live in the White House so our tax dollars are spent keeping him safe in Chappaqua. Hillary spends almost every weekend lounging in her own, privately-held resort. Her private resort gets reimbursed for any and all “official” government functions (including security) because she chooses to conduct all her “business” and personal functions there. She and her family live in three White Houses at the same time.

In an interview, she names the wrong country she bombed while bragging about the chocolate cake she was eating while she ordered said bombing. I could go on and on. The point is that the outrage, the outcries, the screaming by Republicans would be heard around the world and impeachment proceedings would already be underway.

By the way, this is not about political party affiliation. Let’s face it, if Hillary - or any woman or minority candidate - had five children from three partners s/he would never have survived the primary.

And I [MM] would add: this is not just about party affiliation, which it certainly is. This description is the embodiment of white male privilege.

“What do you think—our country’s so innocent?”

Some things speak for themselves.

O’Reilly: “Putin’s a killer”

Trump: “There are a lot of killers. We’ve got a lot of killers. What do you think—our country’s so innocent?”


Here’s what these things are they saying: President Trump’s odd comments and behavior regarding Russia merit a rigorous, bipartisan investigation of the President’s personal finances and his links to Russia.

Cold war liberals at the Chicago Women’s March

Continue reading ““What do you think—our country’s so innocent?””

Obamacare is not “Toast.”

“Obamacare is toast,” read one tweet, reflecting the hive-mind-consensus election night. Two months later, the Affordable Care Act may indeed be headed for destruction. I’m betting not.

This is an odd political moment. The range of plausible outcomes ranges from 20 million people losing their health insurance all the way to ACA surviving surprisingly intact. The only solid prediction I will give is that there will be a $346 billion tax-cut for Americans with incomes exceeding $200,000 per year….

More here, by me at healthinsurance.org.

We’re on a scary walk over thin ice.

Continue reading “Obamacare is not “Toast.””

Full circle: Dispatches from President Obama’s farewell address

We all feel that way, sweetie

I and several thousand other people are here early in McCormick Center, waiting for President Obama. We’re listening the warm-up act of Eddie Vedder and the Chicago Children’s Choir, followed by BJ the Chicago Kid with the national anthem. They all rocked the house—though in fairness it wasn’t the toughest crowd I’ve ever seen….

I am sitting in the press pen, sneaking into a spot nominally reserved for NBC News. I’m about 25 feet from Anderson Cooper. A gentleman, Mr. Cooper graciously let me take his picture. At least he would have, had I not nervously screwed up my fancy camera. He has a better seat. Still, I’m here with my White House press pass, my three cameras, a laptop. A tripod I don’t have permission to set up. I’ve hit the big time.

This is a poignant moment, the end of a sweet journey for many here. My own journey began 9 ½ years ago, when a friend invited me to a small Chicago party on behalf of Senator Barack Obama’s unlikely presidential campaign…. A man I hadn’t heard of, David Plouffe, was the headliner of this small party. He was there to talk campaign strategy. He got hard questions from a skeptical small crowd. Senator Obama was thirty points down in the polls. He was way behind in money. and in name recognition. He was a black guy with a…well you know the list…

I don’t for a moment believe President Obama has been the perfect president or the perfect steward of the Democratic Party. He was still very good. With virtually zero Republican help, his policies pulled our nation out of the deepest recession in generations. He rescued the auto industry. He brought health insurance to twenty million people. His soldiers killed bin Laden. He avoided war with Iran. He did many less noticeable things, too, such as building a Justice Department we can be proud of for its work on civil rights and disability.

He is one of the most worthy men ever to assume the presidency. The Obamas represent our country with such grace, humanity, and integrity. The contrast between President Obama and the grifting demagogue who will replace him defies belief.

President Obama has been the best and the classiest President of my lifetime. I’ve never regretted for one second the thousands of hours I’ve spent supporting his efforts.

Like millions of others, I just ache to see him go.

More here, from my piece at the Huffington Post.

Continue reading “Full circle: Dispatches from President Obama’s farewell address”