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February 26, 2019 WTF Spicyfiles

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Posted on February 26 2019

 

 

WTFINGF February 26, 2019



Andrew Miller Grand Jury Subpoena:

Remember that time that former Roger Stone Associate Andrew Miller essentially told the Courts and Special Counsel Mueller’s Office, take your Grand Jury subpoena and shove it? Yes those were fun times. Thereby putting the Court and prosecutors in the unfortunate position of finding Miller in Contempt? To wit Miller packed up his toys and said I’ll see you at the Supreme Court...see archived twitter thread here. In sum Andrew Miller’s appeal had three specific areas:

 

    • under the Appointments Clause of Article II, § 2, of the U.S. Constitution, “established by law” the appointment of a private attorney to serve as a special counsel as an “Officer of the United States.”
    • Was the Appointment of Robert Swan Mueller, III unconstitutionally permissible, given the appointed is a “principal officer” under the Appointments Clause of Article II, and thus was required to be—but was not— appointed by the President with the Advice and Consent of the Senate
    • Did Congress vest the authority to a Deputy Attorney General: Congress “by Law vest[ed] the Appointment” of the Special Counsel as an “inferior Officer []” in “Head of the [Justice] Department[ ],” and thus, under the “Excepting Clause,” was unconstitutionally appointed because he was required to be—but was not—appointed by Attorney General Jeff Sessions rather than by Deputy Attorney General Rod Rosenstein.

 

The entire premise of both Concord and Andrew Miller’s Appeal can be distilled down to this very simple argument, the aforementioned parties contend:

 

“The Special Counsel wields so much power that only the President or should have been Senate confirmed..”

 

What you may not consider is the actual legal strategy at play. Meaning it is somewhat confusing that an American Citizen, Andrew Miller would team up with a Russian Entity to question the appointment and authority. The point? Argue to the Courts that Mueller should have never been appointed therefore the investigation is “unlawful” and the subsequent criminal indictments are null and void. Unsurprisingly this has been Donald Trump’s mantra since the May 2017 DAG Rosenstein appointment of Mueller.

On a multitude of levels this argument and strategy have several fatal flaws, when President Bush nominated Mr Mueller to be the Director of the FBI, the facts prove he was senate confirmed. Granted I can admit that’s kind of a flimsy argument but it doesn’t change the fact that Mueller was Senate confirmed for his FBI directorship.

Moreover the three judge panel unanimously affirmed a lower Court’s ruling that them Deputy Attorney General’s appointment of Special Counsel Mueller is/was constitutionally sound and permissible. See previous August 2018 write up found here

You can read the full 16 page DC Circuit Court of Appeals ruling in the Andrew Miller Grand Jury Subpoena here. It’s a relatively short opinion but I would not be surprised if Miller files an en banc hearing and/or files a writ with SCOTUS. By in large this Opinion is rather dismissive of Miller’s arguments but...

 

If you can not attack the merits of the counterintelligence and criminal investigation then the predictable move is you attack the “process” of the Special Counsel’s appointment. The three judge panel unanimously agreed that the appointment of Mueller is/was Constitutional and that Deputy Attorney General Rod Rosenstein was effectively the head of the department when (then) Attorney General Jeff Sessions recused himself. On page 8 the panel noted the following:

 

Mueller is subject to greater executive oversight because the limitations on the Attorney General’s oversight and removal powers are in regulations that the Attorney General can revise or repeal...

...Special Counsel Mueller effectively serves at the pleasure of an Executive Branch officer who was appointed with the advice and consent of the Senate...

 

Again I would encourage you to read the USDCA 16 page Ruling re Andrew Miller and the Grand Jury Subpoena. It is a fairly easy read but it also explains the complexity of our Constitution, Congress, DOJ CFRs and the impact of a recusal while affirming that DAG Rosenstein did not exceed his authority. Mueller is here to stay, so get use to it. On an interesting note, I do find it brilliant that the Special Counsel’s Office indicted Roger Stone sans Andrew Miller’s documents and Grand Jury Testimony...that should be appreciated for the glory that it is /snort

 

 

Time Warner & AT & T DOJ Anti-Trust

 At this point I don’t know if Rudy Giuliani has lost his mind. It seems like he keeps popping up like the cryptkeeper who has Tourettes. It’s like every time Rudy opens his mouth he further implicates Donald Trump’s Abuse of Power and Abuse of Office. Seriously Rudy just zip it because you’re actually doing a lot of damage to your client. If that’s your actual strategy dear GOD. What happened to you? You use to be a venerable prosecutor yet you’ve been enchanted by OrangeFarceOne. In the past 16 months you’ve tossed decades of building your reputation, your litigation chops and your credibility into a meat grinder. Honestly for what? Because as you close in on your sunset years your once “respected” reputation will be reduced to a sad sack of ...[insert appropriate adverb here]

 I mean let’s rewind:

    • October 2016 “surprise” who leaked to you from the FBI NYC field office?
    • you gave us the Muslim Ban memo and that caused the SDNY Judge in the Zarrab case to demand an affidavit from you
    • you gave us Alfa Bank & Prevezon
    • you gave us the Trump Hush Money, he “funneled it through a law firm”
    • you gave us “the crime is the hack” which was a peculiar pronouncement...

 

 In June of 2018 I created an extensive twitter thread about this merger and why Trump had really abused his power. This is an archived link to the aforementioned thread, while it’s not inclusive it provides you a decent primer. I never understood why the Department of Justice (DOJ) brought the November 2017 anti-trust action against Time Warner. This link will take you to the original DOJ Complaint.

 

 ...the combined company would use its control over Time Warner’s valuable and highly popular networks to hinder its rivals by forcing them to pay hundreds of millions of dollars more per year for the right to distribute those networks.  The combined company would also use its increased power to slow the industry’s transition to new and exciting video distribution models that provide greater choice for consumers, resulting in fewer innovative offerings and higher bills for American families.

 

Again a vertical merger rarely meets the arduous standards necessary to meet anti-trust violations. As such Trump just couldn’t help himself, now could he:

 

 

Then the USDCA issued their ruling, it is scathing and frankly a well earned victory for Time Warner and AT&T. My opinion on this particular matter has never changed, I stated I felt this action was punitive and a direct vendetta by a petulant power hungry Orange Toddler-In-Chief.

On page 4 the panel made their position crystal clear, which reads in part:

 

 

The government offered no comparable analysis of data and its expert opinion and modeling predicting such increases failed to take into account Turner Broadcasting System’s post-litigation irrevocable offers of no-blackout arbitration agreements, which a government expert acknowledged would require a new model.

Evidence also indicated that the industry had become dynamic in recent years with the emergence, for example, of Netflix and Hulu. In this evidentiary context, the government’s objections that the district court misunderstood and misapplied economic principles and clearly erred in rejecting the quantitative model are unpersuasive. Accordingly, we affirm

 

The panel then turned to the District Court’s rationale and the evidence brought heretofore during the extensive trial. On page 17 the USDCA points directly to the deficiencies and errors in the Government’s argument. In simpler terms the District Court concluded that the Government failed to meet the burden of evidence required to unambiguously state this vertical merger would lead to “cost increases”. The district court found that the government had “failed to clear the first hurdle of showing that the proposed merger is anti-competitive...

 

The district court therefore concluded that the government failed to present persuasive evidence that Turner Broadcasting’s bargaining leverage would “materially increase” as a result of the merger, id. at 204, or that the merger would lead to “any raised costs” for rival distributors or consumers...

It therefore did not address the balancing analysis offered by Professor Shapiro’s quantitative model, nor the question whether any increased costs would result in a substantial lessening of competition.

 

The 35 page USDCA Opinion is just brutal. The panel with astounding precision took each of the Government’s arguments and counter argument an essentially annihilated the Government’s position. The running undercurrent of the USDCA Opinion is the Government failed, repeatedly, insofar as arguing in the lower Court that the Government’s interruption of the “Nash bargaining theory”.  The panel not only affirmed the District Court’s previous ruling they concluded their opinion with this:

 Accordingly, because the district court did not abuse its discretion in denying injunctive relief, see Anthem, 855 F.3d at 352–53, we affirm the district court’s order denying a permanent injunction of the merger.

 

For a more fulsome read, I recommend you read this CNN Business Article, to say this was a two year litigation cage match might be the biggest understatement of the year. Again I never understood why the DOJ decided to aggressively pursue this vertical merger. My guess is AG Sessions was in a weird way trying  to keep the Orange Twitler happy.  My only hope is this particular case catches the eyes of House Democrats and their respective House Committees investigate the DOJ and Trump Administration for what I can only conclude is just another clear example of Trump abusing the power and authority of his office. Here’s a May 2018 Archive of a thread I created 

 

 

Child Separation Policy SUBPOENAS;

There is little question about the unbelievable cruelty of Donald Trump”s Zero Tolerance policy. And yes for two years the Congressional Republicans ran interference and they acted as a human shield. Well that bullshit ends right. the. bleep. now. Because everyone is getting Subpoenas, as they should. As a tax payer our taxes went to enforcing Trump’s heinous policies.

 

Resolved, that upon the adoption of this resolution, the Chairman of the Committee on Oversight and Reform is authorized to issue subpoenas to:

Attorney General William P. Barr

Secretary of Homeland Security Kirstjen M. Nielsen

Secretary of Health and Human Services Alex M. Azar II to secure the production to the Committee of all records described...

 

You should have known that this was coming. And you should also know that Rep Cummings is a gladiator. He is a giant among thr small minded Trump sycophants...this is Rep Cummings leaving it all on the field, all while his Republican House members stuck their preverbal heads in the sand. 

 

 

House Judiciary Zero Tolerance:

On a plus side Scott Lloyd is no longer the head of HHS-ORR, but he’s still on the tax payer payroll. Apparently Lloyd stepped down in December 2018...the House Judiciary is live streaming the hearing right now:

 

The House Judiciary Committee will hold a full committee hearing to conduct oversight of the Trump Administration's family separation policy, finally holding the Administration accountable for the inhumane and callous policy that separated children from their parents at the border. 

 

It. Is. Brutal. And. It. Is. Worth. Watching. It is ridiculous that current Federal Employees refuse to answer if the Zero Tolerance Policy is; a crime against humanity...what’s worse is this hearing had dozens of empty seats. And to my knowledge the mainstream media didn’t run a segment on today’s hearing. I managed to pop in and out and there were times where I was riveted by not only a Congress fulfilling its Constitutional obligation of “Oversight” I was at times shocked by these Federal Employees lack of respect and outright arrogance. You can’t testify at a Congressional hearing by filibustering Committee members time. That tactic of eating the clock so you don’t have to answer the pertinent questions is absolutely unacceptable. ANSWER the GODDAMN QUESTIONS

    • why did it take HHS and DHS months to fix the database?
    • why can you NOT account for ALL UACs that are in your care?
    • why did it take 70+ days to reunite babies and toddlers?
    • when was the pilot program green lit by the administration?
    • what part of the OIG reports are flawed?
    • do you believe the Zero Tolerance policy violated Human Rights?

 Witness Scott Llyod Biography as Llyod’s Written Testimony indicates this POS left his role at HHS-ORR and now heads up the “Faith Based Programs”...I’m pretty sure God has smited you Scott. You repeatedly forced unaccompanied minors to carry pregnancies as a result of their rape. Llyod’s Written Testimony can be found here. I have nothing but unbridled contempt for Scott Llyod see the previous write up on the Tornillo facility here

Should you be inclined I’ve done a fair bit of research and ranting about this disgusting policy. It is absolutely unconscionable that the Trump Administration not only test piloted this program but then they lied about it over and over. At the end of the day the irreparable damaged inflicted on these children can’t even begin to be articulated. Nearly seven months later there are still children that have not been reunited with their parents or adult guardians. 

 

 

Michael Cohen - vault

Like many of you, I’m a bit of a docket wonk, so when I see an alter such as this, it’s rather interesting. I have no idea what the “sealed document” is nor why multiple sealed documents continue to be placed in the SDNY Vault but boy I can’t wait to find out.

 The first occurrence of a sealed document on Cohen’s SDNY docket, see archived twitter thread link  (for the record both of his cases are designated as closed) occurred just days before the Government unsealed the Veselnitskaya indictment (remember look at the date the SDNY Grand Jury handed down a True Bill), see January 20th Twitter archived link. Granted this could just be an innocuous document that range from redacted transcripts to other documents related to Cohen’s case. But it’s important to remember technically both of his cases are closed in the SDNY.

 

 

 

Jesus Elon delete your account:

The tweet and twitter thread that launched a Contempt Motion and Show Cause that Musk did NOT violate the Final Judgement. See the twitter thread archive. For a lack of better terms, when you enter into a Consent Decree with the SEC, it is not advisable for you to basically give the two finger salute to the SEC. Late yesterday afternoon the SEC filed a motion in the SDNY to find Musk in “contempt

 

The SEC isn’t mincing words and they point blank say in yesterday’s filing that Musk has violated the Final Judgement with the following tweets:

 

 

 

Sec the  SEC’s original September 2018 complaint, the SEC filed against Elon Musk, found here. And the SEC filed a complaint against Tesla, found here. The SDNY Judge gave Elon Musk until March 11, 2019 to show that he nor Tesla violated the final SEC order.

National Emergency NYET:

Sure you can make an argument that Donald Trump has the power to declare a National Emergency but then again the “crisis at the Southern Border” is hogwash. Trump knows it. Congress knows it. And most nonMAGA Americans know there isn’t a National Emergency and that Trump is attempting to usurp the Constitutionally Mandated power of the Legislative Branch as it relates to appropriations. Link to H.J. Resolution 46 found here.

 

Relating to a national emergency declared by the President on February 15, 2019.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, pursuant to section 202 of the National Emergencies Act (50 U.S.C. 1622), the national emergency declared by the finding of the President on February 15, 2019, in Proclamation 9844 (84 Fed. Reg. 4949) is hereby terminated.

 

And just like that the Resolution passes the House Chamber, link to Roll Call Vote can be found here What you need to watch is if this has enough votes to clear the Senate. 

 

DOJ Kyrgyz Republic MOAB:

And then the DOJ OPA announcement of repatriation of $6 million to Kyrgyz Republic. Things that just make you go hmmm:

 

These funds were identified in the United States in the criminal prosecution of Eugene Gourevitch for insider trading in the U.S. District Court for the Eastern District of New York and a $6 million forfeiture order was subsequently entered by the Court.

Following the conviction in the prosecution led by the U.S. Attorney’s Office for the Eastern District of New York, the Kyrgyz Government filed a Petition for Remission with the U.S. Department of Justice, Money Laundering and Asset Recovery Section, claiming that the funds subject to the forfeiture order traced back to monies stolen by Maxim Bakiyev from Kyrgyz state authorities and other banking institutions. 

 

What you may not know is in back in 2005 Paul Manafort sent his point person, Konstantin Kilimnik to Kyrgyz Republic. By far this August 2018 Proekt report is one of the more in-depth reports published. It’s the interesting intersection of:

Manafort👉🏻Kilimnik👉🏻Yanukovich👉🏻Deripaska👉🏻Kyrgyzstan circa 2005, here I highlighted the relevant portion of this report for you.

 

The aforementioned report largely adds more color to this February  2017 RFLRL only known interview with Konstantin Kilimnik...it is this particular passage that links the 2005 efforts by Manafort and Kilimnik in  Kyrgyzstan to 'strengthen Russia's position'. What you may NOT know is at the time there was much upheaval surrounding our Manas US Military base. 

 

According to this Department of Defense July 2005 Archive, the importance of Manas was hugely critical for US and NATO Operations. Manas was designated as a refueling way point. So the fact that Manafott and Kilimnik likely lobbied against America and NATO’s interest is hugely problematic and offensive.

 

According to this 2009 FAS Congressional Report, in late 2005 Kyrgyz President Kurmanbek Bakiyev publicly demanded that the US rate of $2 million be increased to $200 million per year, for the United States using the Manas base. I don’t know what else to discribe this beyond a good old fashion “shake down”.

 

 I now refer you to page 8 of the FAS Report...it is this particular section entitled SOFA Terminated, this oddly explains the WHY, WHAT and WHEN both Manafort and Kilimnik were boots on the ground in Kyrgystan lobbying against US and NATO interest and aggressively pushing for Russia’s interest. 

 

 It is bonkers to me how far and wide Manafort & Kilimnik’s tentacles extend. And granted you could excuse Manafort’s conduct as he was just trying to make a living and provide for his family. I would submit to you that earning millions of dollars to betray your own Country certainly does not make you a good guy. In fact I’d argue that makes Manafort a bad guy that surrounded himself with thugs and mobsters.

 

Rep Matt Gaetz should be censured & sanctioned

Oh and before I forget I’d like to remind you that Matt Gaetz using Twitter account threaten Michael Cohen ahead of his Open Hearing Testimony is not only disgusting but it’s shameful. And just might rise to the standard of witness intimidation. It is disgusting and probably criminal. I really wonder if Matty thought this tweet through but I should also remind you that members of Congress have an “out” meaning if Matty positions this as he was “just debating” that might insulate him from criminality...

The Speech or Debate Clause (Clause) of the U.S. Constitution states that “[F]or any Speech or Debate in either House,” Members of Congress (Members) “shall not be questioned in any other Place.”

 

18 USC §1512 TAMPERING WITH VICTIMS, WITNESSES, OR INFORMANTS

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

 

 

Not to be outdone by the actual Republican National Commitee’s own tweet, it’s almost like the GOP forgot that Cohen was their finance chair..

  

 

Dear Vlad - EAT a bag of...

ICYMI today the WashPost published this amazing article. Which detailed our US Cyber-Command shutting Russia’s IRA down as they tried to reassert themselves in the 2018 mid-terms. And yes while it would be appropriate to “congratulate” Trump for once doing the right thing. It should NOT be lost on you that our Cyber-Command working with incredible intelligence from the National Security Agency successfully thwarted Russia’s aggressive attempts to attack our mid-term elections. I think we can all agree, NO ONE tells Americans how to think or who to vote for other than Americans. Russia’s brazenness needs to be throat punched until they get the message, stop messing with OUR Country’s Democracy.

 

The reality is Putin and Russia feel emboldened because they see Trump as their asset. That in the esoteric argument of who’s really a super power America will kick Russia’s ass. All day. Everyday. We can argue if this is disproportionate but here’s what we need to accept, if Russia doesn’t understand that messing with America will only cause our Country to trap, trace and neutralize your attacks. In doing so we are collecting a helluva of actual intelligence and we are getting faster and better. Careful what you wish for Russia. This particular paragraph brought me immense joy, like inject this paragraph straight in to my carotid artery.

 

“grand strategic deterrence” is not always thegoal. “Part of our objective is to throw a little curveball, inject a little friction, sow confusion,” said one defense official. “There’s value in that. We showed what's in the realm of the possible. It’s not the old way of doing business anymore.”

  

Thus ends your daily WTFINGF Spicyfiles data dump.

Heads up I’m super busy at work tomorrow so I might not have the bandwidth during the day to push an entry... xo SpicyFiles.

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15 comments

  • Suzanne: February 27, 2019

    Thank you Spicy! I look forward to reading your posts. Miss you on Twitter but , as you said, there is a silver lining….your receipts won’t be lost

  • Tammi Noirprncess: February 27, 2019

    Hey Spicy! Just saying hi since you are here now.

  • Rick Miller: February 27, 2019

    Thank you.
    Keep up the good work.
    I am happy that the trolls and bots have not silenced you.

  • EmergingCitizen: February 26, 2019

    Hi Spicy!! You arent missing too much on Twitter. Miss your snorts etc.

  • Brigid Berry: February 26, 2019

    I’m so THRILLED to be able to get my Spicy fix!!!! The part about Rudy being the cryptkeeper with Tourette’s made me literally spew my diet Dr Pepper across the room. You are so awesome and your insight and humor are just refreshing as hell. Like chicken soup for the resister’s soul! :)

  • Sue Angel: February 26, 2019

    Spicy! Thank God you are here! Thanknyou for all your hard work and awesome “digging”! We need you.

  • Denise Louise: February 26, 2019

    Thanks Spicy. Great read and insight. I love the new format.

  • Monica: February 26, 2019

    Thank you, Spicy!

  • Nancy: February 26, 2019

    Faithful reader since your twitter original account. You are the only account I keep up all day in my open tabs to check in. More productive now I suppose, but it Sucks. thanks for keeping us up to date here at MadDog.

  • NB: February 26, 2019

    better than ever – I can follow your threads mo easily! As if Twitter has stress fatigue in your absence – regulars not tweeting, or distracted by stinking trump smoke bombs, or running tangents to the ground. McCabe, Brennan, Clapper all called Trump a Russian asset and drove him into the arms of Lavrov & Kim Jong Un! What more do we need to know? Will Cohen’s accusations of criminality soften the ground for impeachment or will it be armageddon? Just take him out.

  • Beth: February 26, 2019

    Thank you Spicy! Don’t ever change. I like this forum for you. We’ll get used to checking it and you’ll stay safer. Keep up the great work!

  • PandaMonious: February 26, 2019

    MIss your posts on Twitter.
    I’m grateful this blog is available. No one does ’splainers quite like you do.

  • Margaret Hardwick: February 26, 2019

    Great stuff sis! Keep up the good work 💪

  • Tiffany LaRouech: February 26, 2019

    Great read spicy. Thank you.

  • SpicyFiles: February 26, 2019

    Just a quick note to say …I see you
    If my trolls thought they would silence me…nope. Not happening
    ❤️
    🧡
    💛
    💚
    💙
    💜
    🖤 this is 🌶🎤 embracing the suck

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