June 10, 2017

Loyalty: Questions Not Asked

Filed under: Probable Cause — Bill @ 2:32 pm

AFP_PD7D0In his prepared Statement for the Record:  Senate Select Committee on Intelligence, June 8, 2017, former FBI Director James Comey recounted a private conversation between President Trump and him over dinner on January 27, 2017.  President Trump used the word “loyalty” several times in talking with Comey.

With absolute predictability the national skews media jumped on the word “loyalty” and its context as attributed to  President Trump and concluded that the President was demanding Comey’s loyalty as a condition of Comey’s keeping his job as Director of the FBI.

Loyalty to what or to whom?  To the Constitution?  To the President of the United States?  To Donald J. Trump?

Nowhere does Comey’s statement reflect that he (Comey) asked this question:  “Mr. President, you’ve mentioned ‘loyalty’ several times tonight.   As President of the United States, what exactly are your expectations for my loyalty as Director of the FBI?  What are your expectations how I will demonstrate the loyalty you describe?”

The questions would have been respectful and reasonable to identify and help resolve any misunderstandings between the President and Comey.   It was irresponsible for Comey not to ask them, especially since in his prepared statement, Comey says, “…, it is possible we understrood the phrase ‘honest loyalty’ differently, but I decided it wouldn’t be productive to push it further.  The term — honest loyalty — had helped end a very awkward conversation and my explanations had made clear what he should expect.”

How did Comey know that Comey’s own explanations had made clear what the President should expect?    How did he know how the President interpreted his explanations?  The answer is that Comey didn’t know.  Comey was afraid to ask the President questions to make sure he understood what the President meant by “loyalty.”  Comey wanted the “awkward conversation” to end.  Comey rationalized that seeking precision and clarity wouldn’t be productive.

In his subsequent sworn personal testimony before the Senate Select Committee on Intelligence, Comey wished that he had been stronger in his conversations with the President.

So do we.   The President and the nation deserved better than James Comey delivered.



June 8, 2017

Understanding the Loser’s Damage

Filed under: Probable Cause — Bill @ 11:42 am

winner booking mugshotWith her arrest on June 3, 2017, by the Federal Bureau of Investigation, former US Air Force linguist and now former NSA contractor employee Reality Leigh Winner joins the recent list of brotherhood/sisterhood/undecidedhood traitors which includes Bradley/Chelsea Manning, Edward Snowden, and Hillary Clinton.    At least initially, Winner has been charged with removing classified material from a government facility and mailing it to a self-proclaimed news organization in violation of 18 U.S.C. Section 793(e).

The classified material Winner has been charged with unlawfully removing was produced by a member of the US Intelligence Community.  She allegedly caused the material to be delivered to a website identifying itself as The Intercept_.   The Intercept_’s website proclaims itself to be “… an award-winning news organization that covers national security, politics, civil liberties, the environment, international affairs, technology, criminal justice, the media, and more. ”   In turn, The Intercept_ published an online article entitled Top-Secret NSA Report Details Russian Hacking Effort Days Before 2016 Election.  The online article links to the redacted but still classified five-page report.   Exposing national security information publicly does not automatically declassify the information.

It is possible and maybe likely that Winner’s defense attorney will try to understate the actual damage done to the national security caused by her alleged disclosure of the Top Secret/Sensitive Compartmented Information.  He may assert that some or most or maybe even all of the information in the report was already in the public domain.  He may even assert that federal officials had lawfully revealed it to various secretaries of state prior to the 2016 election so state election officials could closely examine their election hardware and software and take appropriate countermeasures to protect the integrity of the 2016 election.  If he does raise that as one defense theory, he might be partially correct.

Except …

Our US Intelligence Community seeks out, analyzes, and authenticates potential threats to the United States.   To the greatest extent possible, it determines the magnitude and quality of threats actually posed.  When neccesary to counteract the expected effects of a threat posed, the IC then prepares and releases timely, accurate, and appropriately complete finished intelligence to persons who have a need to know that information to perform their duties.  As noted above, that could include persons not specifically authorized and cleared to receive classified national security information.

So does that mean, for example, that Kootenai County elections officials would not receive essential information developed by the IC about how voting equipment and software can be compromised?  Or does it mean that the Spokane Explosives Disposal Unit would not learn about foreign terrorist techniques used to conceal explosives devices?

No.  The IC members work very hard to ensure that otherwise uncleared persons receive the sanitized information they need to do their jobs.

The key word is ‘sanitized.’   In intelligence-speak, ‘sanitized’ broadly refers to information from which authorized officials, usually the agency originally classifying the material,  have removed any and all information which the specific intended recipient does not need to do his job.  In order to be provided with the tested and approved countermeasure and install it, local officials do not need to know anything about the intelligence sources and methods that went into the report published by The Intercept_.

Which brings us to Reality Leigh Winner.

Some people will likely ask, “What was the harm in her releasing the report?  Shouldn’t elections officials have been given that information?”  The second question’s answer needs to come first, because it better leads into the answer to the first question.

Yes, the elections officials should have received through appropriate channels some of the information sanitized from the classified report.  (Maybe they did.)  They needed sanitized information to identify and correct issues associated with their particular voting equipment and software.    Under no circumstances did they need any of the other information in the report to perform their duties as elections officials.  Morbid curiosity does not establish need-to-know.

And it was in the information that could not and should not be sanitized and released that Winner’s alleged actions may have gravely damaged the national security.  If nothing else, Winner’s alleged unauthorized retrieval, reproduction, and delivery of that report to the journo-whores at The Intercept_  and its subsequent publication by them gave the Russian GRU not just insight but official confirmation of knowledge held by the IC.   The GRU now has a better idea of what the IC knows and doesn’t know about the GRU’s efforts to influence US elections, an effort that has been going on since at least the early 1950’s.   That makes our national counterintelligence efforts to safeguard the integrity of elections much more difficult.

ADDENDUM on 06-08-2017 at 19:25 PDTReality Winner Indictment

May 23, 2017

More About Obstruction of Justice

Filed under: Probable Cause — Bill @ 3:48 pm

SVRlogoSome members of Congress, former swamp dwellers in the federal government, and members of the ooze and skews media (we’ll refer to them collectively as the U.S. Knavery or just Knavery) clearly will do whatever they believe is necessary to remove President Donald J. Trump from office.

To that end, the Knavery has been asserting that President Trump’s campaign ‘colluded’ with Russia to change the outcome of the 2016 presidential election.   The term ‘collusion’ is vague, but if there is an impeachable offense somewhere in the ‘collusion’ they assert, we believe the Knavery must produce admissible and conclusive physical evidence of the instrumentalities of the offense.   Show us the ‘hacked’ voting machines.  Show us the altered paper ballots.   Show us evidence that vast numbers of state election officials were bribed to change vote tallies.  Show us the evidence.

Our feeling is that if the Knavery had evidence of the offense, it would have been produced by now.

Likely knowing their efforts would fail to find DNA evidence of anything resembling an impeachable offense as alleged, the Knavery decided to escalate its efforts.  It decided to employ its Ministry of Disinformation (the ooze and skews media) to convince the public that President Trump had obstructed justice.

Our May 18, 2017, post entitled Obstruction of Justice? provided a primer on the offenses comprising obstruction of justice relating to interference with legislative, executive, and judicial functions.

Here is a link to another CRS publication entitled Obstruction of Justice Statutes:  Legal Issues Concerning FBI Investigations, Specific Intent, and Executive Branch Personnel.  This CRS Legal Sidebar was published on May 19, 2017, and is relevant because the Knavery is asserting that President Trump must have obstructed justice if he discussed the Flynn investigation with former FBI Director James Comey.

Memo to the U.S. Knavery:  If you only have straws, grasp at them.

May 18, 2017

Obstruction of Justice?

Filed under: Probable Cause — Bill @ 7:05 am

Green Congress Call for ImpeachmentOn Wednesday, May 17, 2017,  US Representative Al Green (TX-9) addressed the House and called for President Trump to be impeached.  Green alleges President Trump committed an impeachable offense, obstruction of justice.

Green was not the first nor will he be the last to allege obstruction of justice.

To help members of Congress better understand ‘obstruction of justice,’ the Congressional Research Service published a report entitled ‘Obstruction of Justice:  An Overview of Some Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities.’  The 89-page report was dated April 17, 2014.

May 17, 2017

Appointment of Special Counsel

Filed under: Probable Cause — Bill @ 4:20 pm

SVRlogoHere is the US Department of Justice’s formal announcement of the appointment of Robert Mueller to serve as “Special Counsel to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.”

Here is a link to the formal order signed by Acting Attorney General Rod J. Rosenstein.  It succinctly defines Special Counsel Mueller’s authority and the scope of his duties.

Acting AG Rosenstein’s order refers to several sections of the Code of Federal Regulations (CFR).  Here are links to the applicable CFR sections.

28 CFR 600.4 defines the Special Counsel Jurisdiction.

28 CFR 600.5 defines and authorizes Staff.

28 CFR 600.6 defines Powers and Authority.

28 CFR 600.7 defines Conduct and accountability.

28 CFR 600.8 prescribes Notification and reports by the Special Counsel.

28 CFR 600.9 prescribes Notification and reports by the Attorney General.

28 CFR 600.10 is a No creation of rights disclaimer.

May 5, 2017

Nault Wrongful Death Lawsuit Complaint

Filed under: Probable Cause — Tags: , , , — Bill @ 9:45 am

DisingenuousAs reported in OpenCdA’s May 3, 2017, post entitled Be Strong and Take Courage …, family members of Reginald J. ‘Reggie’ Nault have filed a wrongful death civil lawsuit in Mr. Nault’s death.

OpenCdA has obtained a copy of the initial complaint for damages and demand for jury trial filed in Idaho’s First Judicial District Court on May 2, 2017, at 5:05 p.m.

In addition to identifying the plaintiffs and defendants specifically and individually by name and establishing the jurisdiction and venue of the Court, the complaint particularizes each specific allegation the plaintiffs believe they can prove at trial.

OpenCdA’s preceding posts concerning Mr. Nault’s death raised questions about the quality and timeliness of the Kootenai County Sheriff’s Office investigation and its unwillingness to release the investigative reports to the Nault family.  We also raised concerns about the conflict asserted by Kootenai County Prosecuting Attorney Barry McHugh when the ‘conflict’ attorney, Boundary County Prosecutor Jack Douglas’s press release stated, “However, based on my review of this event and applicable Idaho law, I have determined that no criminal act can be shown to be a direct cause of Mr. Nault’s death.  Therefore, charges will not be filed against anyone by my office.”  [emphasis OpenCdA’s]

Paragraph 2.20 and in particular its subparagraphs 2.20.a through 2.20.i in the complaint allege circumstances which, if sufficient evidence exists to show probable cause, would warrant the filing of some criminal charges.   Paragraphs 3.2.z  through specifically cite Idaho statutes which plaintiffs believe were violated.

Even if we and our readers believe Mr. Douglas’s assessment of evidence and applicable law was appropriate when his office declined to file charges against anyone because no criminal act could be shown to be a direct cause of Mr. Nault’s death, the failure to explain why other possibly appropriate criminal charges were not filed certainly raises valid questions.

The public has a legitimate interest in examining the professional conduct of its elected officials.  The Sheriff and the Prosecuting Attorney are not exempt from that examination.

OpenCdA believes the evidence admitted in court in the wrongful death lawsuit brought by Reggie Nault’s family should contribute to the public’s assessment of the official performance of duties by Kootenai County Sheriff Benton Wolfinger and Kootenai County Prosecutor Barry McHugh.

Additionally, we believe that it will give the public the opportunity to assess the performance of the First Judicial District judge who ultimately hears the case.

To the extent that other elected officials not yet named in any complaint may have received some or all the results of the investigation while those same results were being withheld from the Nault family, we think those officials’ conduct and the conduct of the investigative information provider(s) are deserving of public scrutiny as well.

We hope that the public will pay close attention to the news coverage and reporting of this trial by local and regional newspapers and television stations.    We hope that the news media will carefully and thoroughly question and then timely, completely, and accurately report inconsistencies between the trial evidence and the public officials’ statements and characterizations of that evidence.

Finally, we hope that on his own initiative,  Idaho Attorney General Lawrence G. Wasden pays very, very close attention to the filings and evidence in this civil lawsuit.  His office has statutory jurisdiction as well as a duty and responsibility to investigate if the evidence presented in court reveals violations of state criminal law by county officers who hold elective office.   In this particular lawsuit, the county officers most directly involved who hold elective office would include Kootenai County Sheriff Benton Wolfinger, Prosecuting Attorney Barry McHugh, and Kootenai County Coroner Warren Keene.

May 4, 2017

CRS Report: H.R. 1628 | The American Health Care Act

Filed under: Probable Cause — Bill @ 4:50 pm

CRS copyIt is a reasonable certainty that many, maybe most, of the members of Congress had not read H.R. 1628:  The Amereican Health Care Act in its entirety before it passed the US House of Representatives today.

For those OpenCdA readers who are interested in the Cliff’s Notes version of the Act, here is the Congressional Research Service’s 72-page summary of what most of the Capitol Hill Clowns didn’t read.  It was released today and is entitled H.R. 1628:  The American Health Care Act (AHCA).

May 3, 2017

Be Strong and Take Courage …

Filed under: Probable Cause — Tags: , , — Bill @ 7:25 pm

DisingenuousSeveral previous OpenCdA posts have commended the family of Reggie Nault for engaging a local attorney and pursuing the facts in Reggie Nault’s drowning death.

Melissa Luck, Assistant News Director at KXLY4 News in Spokane,  posted an online news story revealing that a wrongful death civil lawsuit was filed by the Nault family today, Wednesday, May 3.  According to her story, the lawsuit names as defendants the two other 16-year old boys in the boat as well as two adults who allegedly provided alcoholic beverages to the three boys.

OpenCdA concludes tonight’s admittedly incomplete post with the same words we used to end our first one on October 20, 2015:

As OpenCdA has often said, the Kootenai County justice rug has become lumpier and lumpier as incidents have been swept under it.  By engaging an attorney to monitor the investigation of Reggie Nault’s death and evaluate the results of that investigation, the young man’s family is honoring his life by using his death to keep a trained and watchful eye on those who might be tempted to lift the rug’s edge and sweep again.  The facts are the facts, and they will not change.

There can be no genuinely good outcome when a young person dies prematurely.  The closest thing to a comforting outcome is that the person’s family hopes others will learn from the facts of his death and use what they learn to help themselves and others avoid similar outcomes.

We think the Nault family’s action toward that end is honorable and commendable.

We will try to get a copy of the lawsuit’s complaint and post it here.

April 25, 2017

Hallelujah! And Hogwash

Filed under: Probable Cause — Bill @ 7:29 pm

USSS Badge

In our March 25, 2017, OpenCdA post entitled ‘Reevaluate the US Secret Service‘, we expressed our hope that the new Director would be chosen from the Department of Defense.

In its just-published online article, the New York Times announced that former Marine Corps Major General Tex Alles will be the new Director of the US Secret Service.

We don’t know General Alles, however to his appointment we say, “Hallelujah!  Kick ass and take names, General!”

Former Director Ralph Basham was quoted in the Times article as saying, ”  “You are always going to have questions about whether an outsider really understands the mission or what it’s like to stand a post at the White House at midnight.   But I am not sure that is what is really the challenge right now. I think the challenge is to win back the confidence of the American people, the White House and the Congress.”

Former Director Basham comments indicate  the problem, not the solution.  He was not alone by any means, but to Ralph’s comments, we say, “Hogwash!”

It was a Marine enlisted sentry standing a security post at Camp David who did his duty and challenged former President Carter walking on the secluded grounds at Camp David.   The key phrase there is ‘did his duty’.  He followed the orders attendant to his security post.   That was the mission.  The Marine understood it and he performed it exactly as he should have.  Rather than being offended or arrogant, the President defended the Marine’s actions to the base commander.

It’s time for an ‘outsider’, in this instance General Alles, to teach the Secret Service that its protective  ‘mission’ is to provide the President of the United States with a secure environment in which he can perform his duties, the duties we elected him to perform.  The protective  ‘mission’ of the US Secret Service is not ‘to win back the confidence of the American people, the White House and the Congress.’

From our own personal experience, we humbly reassure General Alles of something he will soon learn for himself:  The further down the Secret Service food chain you go, the further away from Headquarters Mahogany Row you get, the more clearly you will see that nearly all of the men and women working at all the jobs in the Secret Service have a clear understanding of and commitment to the mission of the Secret Service.   Please listen to them, too, General.

April 22, 2017

‘ALL’ ? Really?

Filed under: Probable Cause — Tags: , , , — Bill @ 7:39 am

DisingenuousSeveral earlier OpenCdA posts beginning with the one entitled ‘In Search of Facts’ on October 20, 2015, commended Reggie Nault’s family for engaging attorney Lee James to try and shovel the details of the investigation into Mr. Nault’s death from under the increasingly lumpy Kootenai County rug.

The headline of the article in today’s Coeur d’Alene Press says it all:   ‘Judge:  Release Nault Records‘.

As reported, First District Court Judge Rich Christensen has ordered Kootenai County Sheriff Benton Wolfinger to turn over ALL of the Nault records to Mr. Nault’s family.   Sadly, the Nault family had to get a court order to force Wolfinger to release the records.  Unsurprisingly, Kootenai County Prosecuting Attorney Barry McHugh sought to help Wolfinger keep information in the records from ever seeing the light of day.

There were some questions we would expect to have been fully and completely answered in the investigative reports prepared by the Kootenai County Sheriff’s Office investigators.  They include:

What adults were present on the boat and at the dock?  Whose boat was it?  Who was operating the boat?  What was the boat operator’s degree of impairment?  Or was the operator’s impairment even determined by Sheriff’s deputies?  What was the unexpurgated timeline of events surrounding the incident?  From the moment Mr. Nault went into the water, who did what and when did they do it?  Was evidence of alcohol consumption by minors concealed by the minors or any adults present?  If other crimes were committed which contributed to Mr. Nault’s death or which hindered the investigation into it, why were those crimes not charged by the Kootenai County Prosecutor or a ‘conflict’ attorney from another county?

Now we hope either or both our local and regional skews papers do their  job as (alleged) newspapers and file public records requests to examine ALL of the records Judge Christensen ordered to be released.   We would also hope that the papers publish complete and accurate stories that enable readers to fully evaluate the competence and performance of the County Sheriff and the County Prosecuting Attorney.

We’re not holding our breath on that.

In the past, both the Coeur d’Alene Press and The Spokesman-Review have appeared inclined to under-report stories revealing the job performance of public officials they favor in Kootenai County.

We think that in particular, both papers ought to look closely at the number and nature of ‘conflicts’ that Prosecutor Barry McHugh declares when he farms cases out to prosecuting attorneys in other counties.   That information is one of the valid job performance assessment tools available to voters.

We also think that the papers ought to look at the quality of the investigation done by the Kootenai County Sheriff’s Office.  A poor or incomplete initial investigation into an unattended death reflects as badly on a department’s leadership, supervision, and training as it does on the investigators who completed it.  At the same time, it is not unheard of in some law enforcement agencies to occasionally have investigators’  reports adjusted by supervisors in the interest of political expedience or out of consideration for the social standing of some involved.

As we did in our initial OpenCdA post on October 20, 2015, we once again sympathetically commend the Nault family for their decision and efforts to pursue the facts surrounding Reggie Nault’s death.   Unfortunately, it took an order of the Court to get it done, but we offer a heartfelt ‘Thank You’ to the Nault family and their attorney Lee James for fighting to get it.

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