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A Commentary on Holmes’s Lochner Dissent: Part II

In the first part of this post, I started my commentary on Holmes’s Lochner dissent. Here I continue it. As before, I alternate between quoting Holmes and my commentary.

The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. [Holmes here lists various other decisions.] Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

Once again, Holmes is engaged in unsupported assertion. Some constitutions may be intended to embody a particular economic theory – especially if there was a dominant one at the time of the Framing. One must show that the constitution was not intended to do that. Otherwise, Holmes is just telling us what his views about the constitution are, and he has already suggested that the judges views on such matters are not relevant.

[A constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

This is another famous line from Holmes dissent. I agree with Holmes that a good constitution is made for people of fundamentally differing views. In a pluralist country, we should expect that people will differ on many matters and a good constitution will take that into account. But from this point of agreement, I disagree with the implications that Holmes draws. First, that a good constitution is made for people of differing views does not imply that the Supreme Court should adopt a judicial restraint view, as articulated by Holmes below. Many good constitutional provisions allow for pluralism, such as federalism, separation of powers and many individual rights provisions, and enforcing them would promote a good constitutional order for a pluralist country. Judicial restraint may undermine that good constitution. Second, Holmes has not shown that the U.S. Constitution is a constitution of this type. I do agree that the U.S. Constitution is made for people of fundamentally differing views, but not in the way that Holmes thinks.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

The key point here is Holmes’s claim that “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Once again, this judicial restraint claim is unsupported. There are very good reasons to believe that the people who enacted the 14th Amendment would not have allowed states to pass whatever laws they wanted unless no “rational and fair man necessarily would admit that the statute would infringe fundamental principle as understood by the traditions of our people.” After all, the 14th Amendment was passed in part to attack the black codes. More generally, in some ways the Fourteenth Amendment served to protect existing traditions. But in other ways, it sought to establish new principles in the law. And in yet others it appeared to select among the conflicting traditions of the country prior to the Civil War.

Holmes just ignores all of this, so that he can assert his unsupported claim about the Constitution.

Reader Discussion

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on July 25, 2018 at 10:17:38 am

Holmes was either quite naïve or quite disingenuous if he could not see in the ingredients of this statute, the weaker interests that served-up as a confection strongly interested in reducing the burden of a competitors heavier purse; I tend to think the latter. As Rappaport demonstrates, in a manner half-baked, at that!

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Paul Binotto
on July 25, 2018 at 10:44:40 am

Since this site lacks editing capabilities I will "serve-up" here a second-helping; a rephrasing that I prefer to my original:

Holmes was either quite naïve or quite disingenuous if he could not see in the ingredients of this statute, the weaker interests that served it up as a confection strongly interested in reducing the burden not in fact, of the worker’s long hours, but of a competitor’s heavier purse; I tend to think him the latter. As Rappaport demonstrates, in a manner half-baked, at that!

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Paul Binotto
on July 25, 2018 at 13:45:34 pm

Esteemed colleagues, and especially Prof. Mike Rappaport:

We currently live in an environment where some people think reasoned discourse is impossible because we cannot agree on facts, or argue in good faith. Yet on this website, we have soldiered on as if facts DO matter and as if people DO care about reasons. And we have done so with Mike Rappaport’s leadership.

On February 5, 2018, Rappaport opined as follows:

After all of the fanfare about whether the House Intelligence Committee Memo [regarding the FISA warrants for Trump advisor Carter Page] should have been released, we can now see what the fuss was about. In my view, the memo outlines a significant amount of serious government wrongdoing by the FBI and the Department of Justice.

And the following day Rappaport said

In my last post, I discussed serious, partisan wrongdoing that was discussed in the House Intelligence Committee Memo.

Yet Rappaport never got around to identifying any of the alleged “significant amount of serious government wrongdoing by the FBI and the Department of Justice” or the “partisan wrongdoing.” Indeed, it would be difficult for him to have done so, given that the relevant facts—the FISA warrant applications supporting an investigation of Carter Page—had not been released to the public.

Now a redacted version of the warrant applications have been released. They document that Page had been an object of Justice Department suspicion since 2013. In that year Page wrote, “Over the past half year, I have had the privilege to serve as an informal advisor to the staff of the Kremlin in preparation for their Presidency of the G-20 Summit next month, where energy issues will be a prominent point on the agenda,” yet Page never registered as a foreign agent. All of this occurred long before Page had become an advisor to the TRUMP 2016 campaign—indeed, long before there was a TRUMP 2016 campaign.

So questions about the basis for the Page warrants have largely been resolved. What remains unresolved is this: What prompted Rappaport to make his assertions about the justifications for a FISA warrant?

This is not an argument about Trump. Or the Justice Department. Or about Nunes and the House Intelligence Committee. And, importantly, this is not an exercise in making Rappaport wrong.

Rather, I am earnestly curious about Rappaport’s thinking and motivations in making his posts. He has generally exhibited a spirit of open-mindedness and good will, so these posts struck me as out of character. It would be easy to spin conspiracy theories about his motivation. But I’d rather hear from the author himself. Does he still find insufficient grounds for the FISA warrants? And what would prompt him to opine on a matter when the relevant facts were still under wraps?

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nobody.really
on July 25, 2018 at 18:07:51 pm

Nobody: My thoughts on this are in accord with Andrew McCarthy's. See
https://www.nationalreview.com/2018/07/carter-page-fisa-applications-fbi-steele-dossier/

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Mike Rappaport
on July 26, 2018 at 05:01:23 am

My thoughts on this are in accord with Andrew McCarthy’s.

Ok. I guess.

To summarize:

1. Here are the 400+ pages of redacted FISA warrant applications, re-applications, and orders.

2. The specific sections of the FISA law that apply have been redacted, which complicates the ability to research the relevant legal standards. But media reports suggest the application was for wiretapping—that is, “electronic surveillance” under 50 U.S. Code Subchapter I. Under that subchapter, the court may grant a warrant if it finds that “there is probable cause to believe that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power…; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power….

3. Andrew McCarthy's thesis is, at base, that a FISA warrant application should not contain hearsay. I could find no prohibition on hearsay. Rather, to demonstrate fault with the application, you’d need to demonstrate that the application contained ONLY hearsay. And given that so much remains redacted, I can’t fathom how anyone (lacking access to the original documents) could make such a claim.

So, other than the Steele dossier, what other evidence might the redacted text contain? Well….
• There’s the fact that Page lived for years in Russia, and that former Gazprom executive Sergei Yatsenko agreed to be a partner in Page’s one-man energy business.
• There’s the fact that the feds previously charged three Russian agents of trying to recruit Page as a covert foreign agent.
• As I mentioned before, there’s the fact that Page admitted in 2013 ““Over the past half year, I have had the privilege to serve as an informal advisor to the staff of the Kremlin in preparation for their Presidency of the G-20 Summit next month, where energy issues will be a prominent point on the agenda,” yet Page never registered as a foreign agent.
• There's the fact that Page met with Russian and Hungarian officials outside the Republican National Convention in Cleveland, and in Russia and Hungary, even though he initially had denied these meetings occurred. (Russian intelligence is active in Hungary.)
• There's the curious fact that Page was invited to give a commencement address in Russia as cover for these meetings. (Honestly, how many of us had Russian businessmen as commencement speakers? Remember, Page is the sole employee of his own energy firm that has yet to get a project—not the typical resume for a commencement speaker. So why him?)
• There’s the fact that the Steele dossier alleged that Igor Diveykin, Putin’s deputy chief for internal policy (whom U.S. officials believe was responsible for Russian agencies’ intelligence-gathering about the 2016 election) told Page that he had compromising material on Hillary Clinton. Whether or not the meeting has been corroborated, the fact that the Russians had compromising material on Clinton most definitely was. And there’s the fact that other Trump campaign officials, including Donald Trump Jr., George Papadopoulos, and Roger Stone, all indicated that they had had contact with foreign agents promising compromising information about Clinton.

4. The suggestion that the FISA court was deceived about the nature of the Steele dossier is undermined by the fact that the warrant application provides more than a page describing the source of the dossier. In particular, it acknowledges that the people who initially sought the information did so for the purpose of opposing Trump’s candidacy.

Against all this evidence, former federal prosecutor McCarthy cautions against making too hasty a judgment:

Remember, we are talking about serious, traitorous allegations against an American citizen and, derivatively, an American presidential campaign.

Alas, McCarthy neglects to quote any such allegations, and I didn’t find them. Instead, I found allegations of probable cause to investigate whether serious, traitorous conduct had occurred. If the standard is that feds must be able to prove their case beyond a reasonable doubt before they get a warrant to investigate it, that’s news to me. As is the suggestion that potential criminals should be shielded from investigation simply by associating themselves with a presidential campaign. In any event, given that Page had left the Trump campaign months before the FISA application was submitted, I can’t imagine what relevance the campaign angle has to this matter.

McCarthy claims that there’s no reason to believe that the redacted info corroborates the Steele dossier. I don’t find his argument persuasive. But moreover, WHO CARES? What matters is that the applications provide probable cause FROM WHATEVER SOURCE. Nothing about the Steele dossier can detract from the other evidence in the application—including the evidence we can’t see because it’s been redacted.

McCarthy says—

the FBI has been taking incoming fire for months about failing to corroborate Steele. No institution in America guards its reputation more zealously than does the FBI. If Steele had been corroborated, rest assured that the bureau would not be suffering in silence.

Uh … no. In fact, the FBI has been fighting to retain as many secrets as it can. From my vantage point, the FBI appears to be quite reluctant to volunteer anything—even in the face of withering Republican attack. And given Trump’s affinity for seeking retribution, I suspect that there are ever fewer FBI officials willing to publicly volunteer info that would contradict Trump’s narrative. Not if they want to keep their security clearances.

Plus, do you really think the FBI and Justice Department wanted to use the Steele dossier? Of course they didn’t…. If they had solid evidence that verified Steele’s allegations, they would have used that evidence as their probable cause showing against Page. Instead, they used the dossier because, as McCabe told the House Intelligence Committee, without it they would have had no chance of persuading a judge that Page was a clandestine agent.

Again, curious that our federal prosecutor can cite no actual statement from McCabe saying any such thing; indeed, McCabe has expressly denied ever having said that.

Again, McCarthy relies on the argument that because an application contains references to the Steele dossier, it could not also contain other info--an argument that is simply false.

Finally, while McCarthy claims that there is sufficient evidence to conclude that the FISA warrant applications lacked probable cause, he never claims to have seen the unredacted documents. But those who have seen the documents draw differing conclusions. Rappaport dismisses this as “partisan.” But does that explain why so many REPUBLICANS disagree? For example, the applicants are signed by Rob Rosenstein. Moreover, the Senate Intelligence Committee have not balked at the warrant application. Senate Intelligence Committee Chairman Richard Burr (Republican) concluded that there were “sound reasons” for judges to approve the FISA warrant, and Sen. Rubio concurred (Republican) concurred. Does it make sense to dismiss their informed conclusions on the theory that they’re just tainted by partisanship?

Even the National Review's own David French backed away from McCarthy's claims. Instead, he concludes that if there really was no basis for the warrant applications, then there’d be nothing for the Trump Justice Department to redact:

Andy [McCarthey] may be right about everything. Transparency may result in my colleague being celebrated from coast-to-coast for his remarkable insight. But I’m not there yet.I want to see with my own eyes the core assertions that led four separate Republican-appointed judges to grant (and renew) one of the most politically sensitive FISA applications in American history. And if the Trump administration persists in denying me that view, then I’m going to be less-inclined to believe that the applications are without merit. If there’s no evidence against Page, then there’s no evidence to conceal.

Nevertheless, Rappaport throws in his lot with McCarthy.

Is this some bold stand for principle? A case study in how sincere but motivated reasoning can induce partisans to close their eyes to conclusions that provoke cognitive dissonance? Or a campaign to promote a party line regardless of plausibility? Perhaps time will tell.

Thanks to Rappaport for clarifying his thinking. This certainly clarifies mine.

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nobody.really
on July 26, 2018 at 10:42:51 am

Have your read the Foreign Agent Registration Act? It does not appear to cover an unpaid consultant on matters of trade or commerce.

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EK
on July 26, 2018 at 13:42:44 pm

Oh, blah, blah , blah;

Here we find the Great and August Scribe of the Democrat Left asserting that :

"since hearsay is not specifically banned" then all must be excepted and uses that as a justification for the rampant silliness, mendacity and obfuscation of the Anti- AND Never Trumpers in alleging a case against The Trumpster.

And YES, David French is a virulent Never Trumper, who in his hatred for Trump has twisted facts, opinions, etc into a continuous Nevr Trump campaign - indeed, he has been found to now criticize The Trumpster for things that French has advocated in the past.

As for accepting nobody's opinion / analysis vs McCarthy's - is there any question as to whose analysis is based upon experience and not leftist hyperbole.
I am surprised that nobody did not highlight the fact that McCarthy had earlier claimed that the FBI and the DOJ would NEVER commit the types of abuses that have come to the fore once the REDACTIONS (apparently another escape hatch for nobody) have been elimiated. McCarthy apologized for being so taken in by his conception / experience of the FBI PRIOR to the Obama _Holder corruption of those once venerable institutions. He now sees the depths to which the Democrat Party and its minions / operatives within the agencies were willing to go to a) insure the election of the Corrupt Hillary and b) do all within in its considerable power within the agencies AND the media to destroy the incoming President; a flawed man, yes; but not so flawed as an Executive, David French be damned!

Perhaps, nobody really is seeking a position as an "Editorial Writer", aka "spinmeister" for WAPO or NYT.
I would argue that based upon his efforts here at this blog, those institutions deserve each other!

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Guttenburgs Press and Brewery
on July 26, 2018 at 13:45:04 pm

Last sentecne amended:

Those institutions and nobody really deserve each other.
Then again, nobody really deserves the ever burgeoning bullshit of WAPA and NYT

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Guttenburgs Press and Brewery
on July 26, 2018 at 14:13:51 pm

David French is a virulent Never Trumper....

Oh. I'm not a regular reader of the National Review, so I didn't know. Thanks for the heads' up; I guess that's not as powerful a cite as I thought. Curses, foiled again....

As for accepting nobody’s opinion / analysis vs McCarthy’s – is there any question as to whose analysis is based upon experience and not leftist hyperbole.

Rosenstein's? McCabe's? Burr's? Rubio's? The Republican-appointed FISA Court judges who have not only approved the application, but re-approved it multiple times?

Perhaps, nobody really is seeking a position as an “Editorial Writer”, aka “spinmeister” for WAPO or NYT.

Oh, that'd be awesome! Could you give me a referral? I have no doubt that, if asked, you'd happily tell them that you can think of nobody.really who would be perfect for that job.

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nobody.really
on July 26, 2018 at 14:17:46 pm

Oh--nice catch. This leaves open the question of whether Page has received compensation--say, in the form of capital infusions into his one-man business via Gazprom. But it's not quite as clear-cut as I initially thought.

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nobody.really
on July 26, 2018 at 14:33:43 pm

No, the point is that, to date, whenever redacted material has eventually been unveiled, it has invariably, if not exclusively buttressed the arguments made by McCarthy and NOT the Never Trumpers.
And why would you rely upon the word of McCabe, a man who has been terminated *for cause.* I would suggest that you read McCarthy's nalysis on the "defects" in not only the investigation but the initial, findings for and justification of the whole Mueller adventure. He is also, quite skeptical of Rosenteins actions based upon previous investigative protocols followed by pre-Obama era administrations. Apparentlyum, the damage done by the Obama-ites extended into the earlu successors into the Trump administration.

But ultimately, relying upon *the unknown* (redacted material) as a defense of a non-productive overly broad and uncontrolled easter egg hunt is fraught with difficulty when one considers as I said the fact that to date redacted material once revealed exposed the perfidy of the Anti-Trumpers.

Good luck with that, my spinmeister!

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Guttenburgs Press and Brewery
on July 26, 2018 at 14:53:30 pm

Well, uhh Duh!

It is also required of the requesting party that they attest to the fact that the "allegations' were verified.
BTW: that does not mean that a) one argues that because a story appeared in the news media (determined to have been leaked by the same requesting agencies) that *verification* was performed and b) that the "source" is reported to have been reliable in the past. NO - what is means, indeed what it DEMANDS is those requesting the FISA demonstrate that they, as a result of thorough and standard investigative techniques / methods have been able to ascertain with a degree of certainty that is higher than that consequent upon hearsay, "know" the facts in the submittal to be true.
You do not get a warrant to search nobody.s house because Paul Binotto claims that he heard gabe say that nobody has three old ladies tied up in his basement. Gabe in turn claims to have heard it from Pukka.
Yet no police officer interviews Pukka or gabe.
And what will the GOOD judge do.
Through the requesting police officer out on his ass with a sound admonition to learn the requirements for obtaining a warrant.

MOREOVER, given the UNPRECEDENTED nature of the proposed investigation, i.e., surveillance of a rival political campaign, one would expect that the most rigorous scrutiny would be applied to the FISA warrant.

But then again, reliable reporting (OK, to me it is hearsay) indicates that the FISA Court appears to have been issued a "rubber stamp" and they seemed to have settled comfortably into that role.

So the confirmation bias is nobody.reallys and it may not be a problem for anybody else really.

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gabe
on July 26, 2018 at 14:54:45 pm

Hey, yippee!
I can finally post again.
I think I will have a beer in celebration.
Nobody, how about you? A nice cold Peroni, perhaps?

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gabe
on July 26, 2018 at 15:54:14 pm

As to this second installment of Rappaport on Holmes on Lochner, I repeat my "bravo'' assessment of Rappaport's 1st installment:

"Neat idea, appealing literary approach, job well done.
As for this 1st commentary, I would comment only that I agree with its substance re Holmes’ lack of substance, which I would say was more often than not the case with the Great Dissenter and so often so as, arguably, to be typical of his judicial opinions. I think Buck vs. Bell his rule and Schenk vs. United States Holmes’ exception.
Another characteristic of Holmes’ Lochner dissent ( besides being wrong on the merits) is its stilted, posturing language. Holmes is often thought of as pithy, whereas in Lochner and most other of his opinions the more apt characteristic of his literary style is pretentiousness and intellectual haughtiness masquerading as the epigrammatic. Holmes wrote and spoke as if he had descended from Olympus to lecture Athenian farmers."

And as to Rappaport's 2d Installment I would add the following comments about each on the Holmes' Lochner quotations discussed by Professor Rappaport, which I have numbered "Quotation One through Three":

Quotation One: Here we find a double irony, the irony of OWH Jr., an icon of Progressivism and of the modern Left, relying on his general ignorance of the history of constitutions to renounce (unwittingly) the ignorant historicism of another of their darlings, Charles Beard, about the US Constitution and the further irony that they were both wrong:)

Quotation Two: Almost as if he's playing his own straight man, Holmes, here, is resorting to a familiar rhetorical tactic (for him) of setting up a straw man so he can knock it down with his customary self-regarding rhetorical flourish. No one in the Lochner majority was arguing (as Holmes implies) that the novelty of the state law under review or even its capacity to induce frisson was grounds for declaring it unconstitutional.

Quotation Three: Holmes introduces yet another straw man argument (see Quotation Two) and uses it to concoct a novel theory of constitutional interpretation not advanced by the majority opinion, a theory of interpretation which Holmes then renounces: that the constraints of the Due Process Clause are met "...unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles..." Besides being wrong as to the history of the Fourteenth Amendment in the Supreme Court, not theretofore or since has the Court embraced Holmes' proffered ''It's OK unless a rational and fair man finds it offensive to liberty " test.

Finally, I offer a gratuitous comment about the perverse attempt of one notorious commenter to hijack this commentary by Rappaport on Holmes 1905 dissent in Lochner and convert it into a debate over the DOJ/FBI's 2016 et seq. FISA Court search warrant applications in the SpyGate scandal. Neither the moral skepticism and legal positivism of Justice Holmes nor his dubious Lochner dissent can be coherently linked to the FISA warrant applications. Thus, from an evidentiary standpoint argument on that matter is immaterial and irrelevant to the issue at hand, and as a matter of jurisdiction its discussion should arise only in response to another articulate commentary involving that case or controversy:)

Perhaps Professor Rappaport will accommodate his readers in that regard.

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Pukka Luftmensch
on July 26, 2018 at 17:11:17 pm

We may say that both Holmes and nobody (yes, that may be redundant) are juridical prestigiditators as both are quite adept at obscuring the obvious and, I might add, the salient elements of a controversy.

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gabe
on July 26, 2018 at 19:20:35 pm

If I had heard that nobody has three old ladies tied up in the basement, I might have been relieved but tempted to ask "Does this mean that somebody did have three old ladies tied up in the basement?", but that would only risk getting me caught up in some Abbott & Costello "Who's on 1st" perpetual loop in which I would feel obligated to participate and perpetuate, much like the whole Russian Collusion narrative, which has become just that - "Who did what, and when did you know it?" "No, who and what I did not know , and when." "What and when, who knows."

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Paul Binotto
on July 26, 2018 at 19:28:51 pm

CNN just reported, based on a Fusion GPS investigation funded by his enemies, that nobody had three old ladies tied up in his basement.

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Pukka Luftmensch
on July 26, 2018 at 19:38:58 pm

Ha! There must be an undisclosed source among us! I'll bet nobody has Prince Albert in a can, too...

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Paul Binotto
on July 26, 2018 at 20:16:40 pm

and by the way, there is the rather questionable record of Robert Mueller, first in *protecting Whitey Bulger and in the anthrax letters in which Bobby's *persistence* /and his Valjeanian blindness caused the death of a man now recognized to have been innocent of the charges.

It is clear that some Prosecutors will indict a ham sandwich - what is not as well known is that some Prosecutors will REFUSE to indict "rotten tomatoes". Mueller would appear to appreciate overripe legal salads so long as he is applying the dressing!

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gabe
on July 26, 2018 at 20:54:43 pm

Just heard a news story re FISA Court and Robert Bork. Apparently he foresaw 40 years ago that creating that secret court which is responsible to nobody (sorry) would invite the very dissipation of responsibility both by the judiciary and by the DOJ that has now transpired.

Where is CJ Roberts in all this? He allegedly supervises that court and could release the unredacted records on which the judges issued the Carter Page surveillance warrants. That DOJ could do the same (and refuses) is no excuse for the judiciary not to demonstrate some public accountability.

http://online.wsj.com/public/resources/documents/bork03091978.pdf

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Pukka Luftmensch
on July 26, 2018 at 22:49:05 pm

The FISA law also requires that the surveillance of an American citizen for which FISA court approval is sought must be certified to the court as the last available option for obtaining the needed counter-intelligence information. Yet, 2013-14 the FBI had previously worked closely with Carter Page who volunteered his cooperation in a prior investigation of two Russians who were ultimately convicted and jailed in part because of Page's assistance of the FBI investigators. Further, Page was cooperating with and voluntarily talking to the FBI at the very time the FISA application involving him falsely certified to the court that the DOJ/ FBI could get info from Page ONLY through clandestine surveillance. This constitutes another instance of DOJ/FBI misleading and deceiving the FISA court.

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Pukka Luftmensch
on July 27, 2018 at 00:29:11 am

Third base!

Or, from the same era, "Who knows what old ladies lurk in the basement? NOBODY knows!"

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nobody.really
on July 27, 2018 at 08:08:16 am

Ha - yes!!

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Paul Binotto
on July 27, 2018 at 09:01:52 am

Sounds like the sinister radio laugh describing the Shadow's singular knowledge of evil lurking in the hearts of men. Or is it from the 1950's TV play (for me) Arsenic and Old Lace? which involves poisoned bodies in the basement and lunatic siblings, including two spinster sisters.
As for "Prince Albert in the can" as I recall the ditty, it's ''Do you have Prince Albert in the can?'' "Poor thing! Let him out."
Gawd what one can remember from his childhood in the 40's & 50's while he's unable to recall in July 2018 the names of the recently added 5th starter for his home team Nats or the terrific backup who replaced Zimmerman while he was on the DL.

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Pukka Luftmensch
on July 27, 2018 at 09:15:26 am

Ha, yes! Although I would like to forget my Buc's 12-6 loss to the Mets!

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Paul Binotto
on July 27, 2018 at 10:13:09 am

Yep, I also thought of Arsenic and Old Lace - luvv'd it!

And I would like to forget Bill Mazerowski's 9th inning home run to beat my NY Yankees.

Memories are good even when bad!

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gabe
on July 27, 2018 at 10:22:10 am

Yep, Page WAS a cooperating subject, the FBI and DOJ WERE aware of that fact AND, (contra nobody) made absolutely no mention of that FACT in the FISA applications; NOR did they explain / reveal any potential bias on the part of Steele, the "thinness" of his sources, etc. etc.

Now here is a question:
In follow on court proceedings instituted by Mueller, why did the FISA court judge recuse himself (or was he compelled to do so).

No, this entire misadventure was simply another way of that execrable Obama to weaponize government mechanisms against his political opponents. Nobody really believes that Obama was not capable, nor prone to do just that as evidence by IRS scandals," counter-terrorism" *unmasking* of American citizens, who all seem to have been part of the political opposition, etc etc etc.
Gee, isn't that the Chicago way?

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gabe
on July 27, 2018 at 10:47:36 am

Ahh, that was some game; Maz will be forever immortalized in that homer; Still such a gracious and humble man to this city and her fans.

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Paul Binotto
on July 27, 2018 at 11:23:58 am

From diatribe to memory lane!
And the Left fails to see that maintaining the common ground of tradition is important both to culture and to civility.

BTW, Binotto, I'm now a Nats fan because I live in the swamp. But I'm a Bucs fan, too, since the early 50's. (Grew up in West Virginia and Pittsburgh was my "big city.") Once a Pirate fan always a Pirate fan. Saw this rookie Clemente replace Greenglass? in right field at Forbes Field (1955?) and never look at the bench again. Loved KDKA's Bob Prince, the Duke of La Hoya in Left, Smokey behind the plate, Dick Groat at Short, Bob Friend and Vernon Law ("the Deacon") both winning 20 games, Elroy Face's fork ball and Harvey Haddix losing a perfect game and the whole great gang, three of them from the Reds. Loved Maz and October 1960 when the Yankees absolutely crushed the Pirates yet lost the Series. Have a great framed art poster of the home run.

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Pukka Luftmensch
on July 27, 2018 at 11:42:51 am

Ahh, it is great to hear! And, the memories. You must make the trip to the Clemente Museum some day; here is a link: http://www.clementemuseum.com/

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Paul Binotto
on July 27, 2018 at 11:58:24 am

Pukka / Paul:

Absotively luvv'd the memories.
And boy, it is good to hear someone mention Elroy Face. didn't he win 18 straight games with that fork ball. I would check the sports pages each day to see how my Yankees did AND whether Elroy had gained another win. And harvey Haddix whose PERFECT GAME (yes, commissioner, it is a prefect game) is now deemed just another loss. As a young boy, and a Yankees fan, I was quite sad at what happened to Haddix. Until "clarification" by baseballs own version of the Black Robes, we always considered it a perfect game. In fact, I still do.

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gabe
on July 27, 2018 at 15:46:34 pm

It is, a PERFECT GAME!!!

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Paul Binotto
on July 28, 2018 at 11:10:09 am

You and I are in broad agreement, I think, in our caution about accusing the FBI of deceiving the FISA court.

But a quibble, if I might: I would not lean too heavily on the fact that FISA warrants were approved multiple times. In many fields, one need not look far for otherwise well-regarded people who come to a questionable judgement with difficulty the first time, then find progressively easier to break that way again and again until it occurs with literally no thought whatsoever.

Or more bluntly: sometimes the familiar mistake is more easily made than the novel one. I know this from my own work as an engineer who has investigated multiple mishaps. One can get quite comfortable with a practice that later proves disastrous.

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Chris Lynch
on July 28, 2018 at 11:40:39 am

Your observation regarding the irrelevance of the Page/FISA business is dead-on. I'm surprised so many people followed nobody.really into the woods.

That being said, I disagree with Holmes in his opinion that "...the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

At least, I do not think this should always be true with regard to things a justice finds "shocking". The phrases, "cruel and unusual", "'reasonable man' test" and "community standards" spring to mind where an indignant justice may pronounce that a certain thing does not enjoy constitutional protection. I realize that this lets in some subjectivity into the process, but hey, "liberty" and "the pursuit of happiness" are loopholes just begging for trucks to drive through. Since these loopholes are quite large enough, thank you, I have always strenuously objected to the "emanates from the penumbra" idea in Griswold v. Connecticut.

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Chris Lynch
on July 28, 2018 at 12:00:54 pm

The "deception" is in failing to disclose 1) the DNC's political ownership and origins of the dossier; (Indeed, the language of the application is written as if to conceal that fact.) Securities law has long-embraced the notion that the failure to disclose a material fact is overtly an attempt to mislead.( See Section 10 B of the Securities Act of 1934 and section 10 b-5 of SEC regulations on corporate disclosures.); 2) the fact that none of the dossier information had been verified (contrary to DOJ/FBI rules and FISA Court practice); 3) the fact that Page had a history of cooperation with the FBI, was cooperating with them at the very time the FISA application was made and, thus, the application failed to meet the requirement of FISA that surveillance be sought ONLY if all other methods of obtaining the needed info were unavailable to the FBI.

This was all known to the DOJ/FBI and not told to the FISA judges.

You wish to cite an engineering truism, the first error is the easiest. Well, that is also known in religion, ethics and criminal law to be true of the first lie. That the application was resubmitted three times and signed by 4 leaders does not suggest human propensity to the repetition of harmless error, but rather it points strongly to the human propensity to compound the first act of deception.

Further, there's another truism that seems to me appropriate: "Don't attribute to malice that which can be reasonably explained by stupidity." Does the failure here sound like stupidity repeated by smart people FOUR times over? Of course not. Malice was the motive, deception was the means. Especially in the context of the clear flouting of the clear requirements of a FISA application and the investigators' indisputable hatred of the Trump campaign.

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Pukka Luftmensch
on July 28, 2018 at 12:23:06 pm

In fairness to Holmes, his statement re whether a matter is "natural and familiar or novel and even shocking ought not to conclude our judgment" as to its constitutionality is correct as to how a judge must approach the FACTS of a case. It's a mere statement of the obvious: the need to maintain an open-mind in deciding a matter in dispute, albeit, as you point out, there are precepts of law that are accepted as given and beyond debate, such as "cruel and unusual" and "reasonable man standard." But the FACTS that go into deciding whether those legal precepts are applicable and violated are not decided on the basis of whether the facts are novel or old hat or shocking. That's what Holmes was talking about, I think.

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Pukka Luftmensch
on July 28, 2018 at 12:55:11 pm

" I’m surprised so many people followed nobody.really into the woods."

Actually, not all that surprising. It is not dissimilar from having Thanksgiving Dinner with Crazy Uncle Cliff, who is prone to spout out some rather odd but entertaining theories;

https://youtu.be/gku_xU2BXBs

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gabe
on July 28, 2018 at 13:37:14 pm

"Follow him into the woods" Hell!
Just trying to get out of the maze of weed trees he threw up around us.

Satanic powers, that man.
Old ladies have learned to avoid him.
As for the rest of us, "Fools rush in...''

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Pukka Luftmensch
on July 28, 2018 at 14:10:12 pm

Also, the FBI 1) repeatedly cited the Isakoff Yahoo news article as if were independent corroboration of the Steele dossier it, 2) knew, contrary to what it told the court, that Steele, himself, was the source of the Yahoo news report 3) denied that Steele was the source of the Yahoo story and 4) attested to the court that Steele was "reliable" yet failed to inform the court later in seeking further extensions of the surveillance that the FBI had fired Steele because he proved to them that he was both unreliable and a liar.
Not one deception there but three deceptions and none could possibly be inadvertent !

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Pukka Luftmensch
on July 29, 2018 at 11:59:18 am

The “deception” is in failing to disclose 1) the DNC’s political ownership and origins of the dossier; (Indeed, the language of the application is written as if to conceal that fact.) Securities law has long-embraced the notion that the failure to disclose a material fact is overtly an attempt to mislead.( See Section 10 B of the Securities Act of 1934 and section 10 b-5 of SEC regulations on corporate disclosures.); 2) the fact that none of the dossier information had been verified (contrary to DOJ/FBI rules and FISA Court practice); 3) the fact that Page had a history of cooperation with the FBI, was cooperating with them at the very time the FISA application was made and, thus, the application failed to meet the requirement of FISA that surveillance be sought ONLY if all other methods of obtaining the needed info were unavailable to the FBI.

1. How does Luftmensch know what the FBI failed to disclose? To make such a claim, he’d have to know everything the FBI disclosed—and large portions of the publicly-available versions of the application are redacted. Unless Luftmensch is offering personal testimony based on having seen the unredacted documents, his claims would seem to be groundless on their face.

2. Yes, FISA warrant applications uses stylized language, referring to Steele as “Source No. 1” and Trump as “Candidate #1.” This stylized language is intended to remove political considerations from the court’s analysis. This practice did not start with the Page case.

Again, the Application includes more than a page of single-spaced info apparently discussing the background of the Steele dossier. While much is redacted, other parts are disclosed, including at p. 16:

The identified U.S. person hired Source #1 to conduct this research. The identified U.S. person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that he identified U.S. person was likely looking for information that could be used to discredit Candidate #1’s campaign.

3. Again, it’s hard to know whether any aspect of the dossier has been verified. For example, the dossier discussed that Russia was trying the influence the outcome of the US election. At what point can we say that this has been verified?

4. The larger argument is whether “DOJ/FBI rules and FISA Court practice” prohibits a FISA warrant application from including hearsay in addition to solid info, provided the hearsay is identified as such. Luftmensch was kind enough to site SEC law; perhaps he could be so kind as to cite sources relevant to his claim?

5. Due to redactions, it’s hard to know how much the FBI disclosed of Page’s past cooperation—but they clearly disclosed something. The application’s p. 13 begins, “According to information provided by Page during ___ interview with the FBI….” The following pages discuss the case of Buryakov, Podobnyy, and Sporyshev. So how anyone could read this as proof that the FBI withheld information that Page providing info regarding these Russian agents, I can’t fathom.

6. Moreover, I don’t follow Luftmensch’s argument that, because Page was cooperating with the FBI regarding some topics, he could not have been concealing information about other topics. While people have the right to remain silent, most people are willing to cooperate with law enforcement agents—if for no other reason than to reduce the suspicion they would attract by refusing to do so. Thus, people who know they are guilty regularly talk to law enforcement agents—to the frustration of defense attorneys everywhere.

How does Luftmensch imagine the conversation went?

FBI: Please tell us about Buryakov, Podobnyy, and Sporyshev.
Page: Happy to. [Blah blah]
FBI: Thank you. Now please tell us about your own guilt in conspiring with Russia.
Page: Well, since I’ve told you about those three Russians, I guess I can’t help but confess….

Somehow I don’t think that’s how these things go.

7. Regarding Isakoff and Yahoo News:

[T]he FBI 1) repeatedly cited the Isakoff Yahoo news article as if were independent corroboration of the Steele dossier it, 2) knew, contrary to what it told the court, that Steele, himself, was the source of the Yahoo news report 3) denied that Steele was the source of the Yahoo story and 4) attested to the court that Steele was “reliable” yet failed to inform the court later in seeking further extensions of the surveillance that the FBI had fired Steele because he proved to them that he was both unreliable and a liar.

Citations would be helpful.

As far as I can tell, the FBI cited the Yahoo article to inform the Court that certain information was now in the public domain. Yes, the FBI cited Steele as “reliable” in the sense that they trusted him to speak accurately to the best of his knowledge. Steele leaked info from his memo to Yahoo because he was concerned (with good justification, as it turns out) that the Russians were seeking to subvert an election, and the FBI wasn’t acting quickly enough. The FBI elected to terminate their relationship with Steele after that. But none of this impeaches Steele’s credibility, just Steele’s willingness to follow the FBI’s lead.

8. Finally—

“Don’t attribute to malice that which can be reasonably explained by stupidity.” Does the failure here sound like stupidity repeated by smart people FOUR times over? Of course not. Malice was the motive, deception was the means.

Don’t you see? It’s all a conspiracy! They’re all out to get me! That’s why the FBI started investing Page in 2014, long before the Trump campaign began! And that’s why they filed a FISA warrant application after Page had left the campaign. Obviously, if you had all the resources of the FBI and the FISA Court behind you, the best way to undermine Trump would be to launch a convert, multi-year investigation of some tertiary, previously unknown energy guy who never seemed to have influenced Trump’s energy policy anyway. SEE? NOW IT ALL MAKES SENSE!

In 1964, Nobel laureate Richard Feynman recalled a common conversation he’d have:

"Is it impossible that there are flying saucers? Can you prove that it's impossible?" "No", I said, "I can't prove it's impossible. It's just very unlikely". At that he said, "You are very unscientific. If you can't prove it impossible then how can you say that it's unlikely?" But that is the way that is scientific. It is scientific only to say what is more likely and what less likely, and not to be proving all the time the possible and impossible. To define what I mean, I might have said to him, "Listen, I mean that from my knowledge of the world that I see around me, I think that it is much more likely that the reports of flying saucers are the results of the known irrational characteristics of terrestrial intelligence than of the unknown rational efforts of extra terrestrial intelligence." It is just more likely. That is all.

Plenty of people have bought into the idea that the FBI is part of a conspiracy to bring down Trump by focusing on Carter Page. Why?

One thesis is that we’ve stumbled upon some secret intelligence, an actual conspiracy against Trump. Another theory is that we’ve discovered “the known irrational characteristics of terrestrial intelligence”—that is, we’ve stumbled upon people’s tendency to view a complex world through the lens of their hopes and fears, and thus to find secret conspiracies. In a word, we’ve discovered motivated reasoning.

I began this discussion because I wanted to explore the extent to which reasoned discourse mattered anymore. The longer this discussion goes, the more the evidence mounts. Alas.

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nobody.really
on July 29, 2018 at 12:29:47 pm

nobody pitying nobody says self-pityingly of his self-pitying self who admits that he is nobody: "I began this discussion because I wanted to explore the extent to which reasoned discourse mattered anymore. The longer this discussion goes, the more the evidence mounts. Alas."

"Boo hoo! Nobody understands me," nobody seems to complain, while lamenting that nobody agrees with nobody and nobody can't convince anybody that nobody's right even some of the time and even though on Law & Liberty nobody has exhausted his soi-disant skills of logic and persuasion in wearying displays of expository charity that should have fooled all of the people all of the time. Yet, nobody's failed not only to convince most of the people some of the time and some of the people most of the time, nobody's failed to convince any of the people any of the time.

Yep, nobody's convinced nobody of anything and has done that consistently all of the time.

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Pukka Luftmensch
on July 29, 2018 at 14:49:18 pm

Spinmeisters appear to believe that the love and adulation they feel for their own words are shared by those unfortunate enough to hear the cacaphounous refrain, the repetition of which does not make it any more harmonious or convincing.

One sometimes has the impression that nobody uses this forum as a testing ground for Democrat Party talking points. "Ummm! Let's see if we can slip this ostensibly well researched / presented argument past those right wing{nuts].

If we let it go unchallenged, one may expect to find it in the next posting from the DNC and / or in the pages of WAPO, NYT, MSNBC and utter in the halls of Congress.
Maybe, nobody.really works for Adam Schiff.

Yeah, he is just trying to see how far reasoned discourse will go. First element for reasoned discourse - employ facts, do not deny the weakness in your position as nobody would have us believe that the redactions prevent us from knowing what the Fibbies really did. FACT. Every UN redaction has justified that charges made by Nunes, McCarthy and others were correct. The Fibbies are up to their nostrils in political doo-doo!

I'll bet as a boy, nobody was famous for the excuses he generated when caught with his hand in the cookie jar!

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gabe
on July 29, 2018 at 18:37:08 pm

In 40 years as a litigator one develops in the process of pretrial document discovery and witness deposition 1) an instinct for early recognition of facts and behavior that look like the tip of an unseen iceberg and 2) a compelling sensitivity to knowing when what is revealed suggests a great deal about what is being concealed and has yet to be discovered. Based on all that has been publicly disclosed about what the witnesses have said, based on what the witnesses have refused to disclose, based on DOJ's redactions in the documents they have disclosed, based on what little DOJ has disclosed without redaction and based on the volume and nature of the documents DOJ has refused to disclose, I sense to a point of virtual certainty that what remains redacted or undisclosed or unspoken is very bad news for DOJ/FBI, very conducive to exposing criminal violations of law, including criminal obstruction of justice, and very good news for restoring the rule of law in this SpyGate matter.

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Pukka Luftmensch
on July 31, 2018 at 22:55:50 pm

"Reason is always a kind of brute force; those who appeal to the head rather than the heart, however pallid and polite, are necessarily men of violence. We speak of ‘touching’ a man’s heart, but we can do nothing to his head but hit it."

G. K. Chesterton, Twelve Types (describing Charles II)

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nobody.really
on August 01, 2018 at 06:43:33 am

"Man was created to walk upright, that neither his head nor his heart may lead him, but rather that his head and heart will proceed in unison along a parallel path." - Paul Binotto

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Paul Binotto
on August 01, 2018 at 09:11:41 am

Nice quote--but I heard it was apocryphal.

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nobody.really
on August 01, 2018 at 09:23:59 am

Ha - good one!!

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Paul Binotto

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