Perseid by the Sea

Aug. 17th, 2017 05:11 am
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Just after moonrise on August 12 this grain of cosmic sand Just after moonrise on August 12 this grain of cosmic sand


Total Solar Eclipse of 1979

Aug. 15th, 2017 05:01 am
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From cold, clear skies over Riverton, Manitoba, Canada, planet Earth, From cold, clear skies over Riverton, Manitoba, Canada, planet Earth,


Charon Flyover from New Horizons

Aug. 15th, 2017 05:01 am
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What if you could fly over Pluto's moon Charon -- what might you see? What if you could fly over Pluto's moon Charon -- what might you see?


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Posted by Ken White

I used to have DreamHost as a webhost. We parted ways, but I always admired and appreciated that they reliably stood up for their customers — including me — in the face of bogus legal threats seeking to suppress speech.

This week they're standing up admirably for internet users once again, this time in the face of an overbroad and deeply concerning search warrant issued in connection with Inauguration Day protests. Their blog post about it is here.

Washington D.C. prosecutors have charged and prosecuted inauguration protesters for crimes including riot and destruction of property. And without a doubt there were some crimes committed by some protesters, including assault and destruction of property. But the prosecutors' investigation has taken an alarming turn. They've been focusing on a web site called disruptj20.org, which they allege was used to coordinate illegal behavior. Here's how the site described its goal:

We’re planning a series of massive direct actions that will shut down the Inauguration ceremonies and any related celebrations–the Inaugural parade, the Inaugural balls, you name it. We’re also planning to paralyze the city itself, using blockades and marches to stop traffic and even public transit. And hey, because we like fun, we’re even going to throw some parties.

The site also contains a large about of information about protest and discussions of anti-Trump advocacy.

The Department of Justice initially used subpoenas to DreamHost to seek subscriber information about who ran the site. That's fairly straightforward. But then they doubled down. They obtained a search warrant for an extremely broad array of data related to the site, including all stored records of access to the site or communications with the site. As written, it seems to demand data including the IP addresses of everyone who ever accessed the site and the content of every site visitor's question or comment submitted through the site's comment form, as well as all emails sent to or through the web site. The Department of Justice has filed a motion in the DC court where charges are pending to compel DreamHost to respond, and DreamHost has filed an opposition articulating its objections to the warrant.

DreamHost's brief illuminates the key issues: the search warrant is dangerously overbroad, and implicates protected speech. The Department of Justice isn't just seeking communications by the defendants in its case. It's seeking the records of every single contact with the site — the IP address and other details of every American opposed enough to Trump to visit the site and explore political activism. It seeks the communications with and through the site of everyone who visited and commented, whether or not that communication is part of a crime or just political expression about the President of the United States. The government has made no effort whatsoever to limit the warrant to actual evidence of any particular crime. If you visited the site, if you left a message, they want to know who and where you are — whether or not you did anything but watch TV on inauguration day. This is chilling, particularly when it comes from an administration that has expressed so much overt hostility to protesters, so relentlessly conflated all protesters with those who break the law, and so deliberately framed America as being at war with the administration's domestic enemies.

There's a hearing on the Department of Justice's motion on Friday. I'll keep an eye on the case. You should too, and please spread the word that this is what the government is trying to do.

Edited to add: Please feel free to disregard all my analysis, because someone linked here on Reddit and an engineer says I'm not a lawyer or anything and she can tell that the law is wrong because of the law she knows.

Copyright 2017 by the named Popehat author.
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Posted by Ken White

Discussions of free speech in America are usually dominated by hypotheticals — or by slippery slope arguments, if you prefer.

The First Amendment unquestionably and broadly protects what we call "hate speech." If you point that out, you get hypotheticals in return. "Really? So, the day that Nazis march the streets, armed, carrying the swastika flag, sieg-heiling, calling out abuse of Jews and blacks, some of their number assaulting and even killing people, you'll still defend their right to speak?" That literal parade of horribles is invoked when free speech defenders talk about anything from bigot college kids acting out to Alt-Right racism online.

We free speech defenders are just as quick with hypotheticals; it's built into our worldview. "Really? So you'd give the state the power to choose what speech is acceptable and what speech isn't, and use its vast power to punish the difference? You're comfortable giving it that power, even though some day that state might be controlled by an implacable enemy of everything you believe in, a tyrant who overtly relishes the power to punish people who think like you do, encouraged by supporters who hate you?" The unprincipled-tyrant-that-could-be is a staple of First Amendment rhetoric.

Hypotheticals — called slippery slopes when you're dismissing them — are supposed to require some imagination, are supposed to involve some projection about how current events could deteriorate to an ugly future scenario. How will it change our thinking when that ugly future is now?

This weekend the hypotheticals about how far the Alt-Right might go collapsed into a grim reality. Literal Nazis marched the streets of an American city, calling out Jews and blacks and gays, wielding everything from torches to clubs and shields to rifles, offering Nazi slogans and Nazi salutes. Some of their number attacked counter-protesters, and one of them murdered a counter-protester and attempted to murder many others. This is the "what if" and "how far" that critics of vigorous free speech policies pose to us as a society.

So, too, has the malevolent government we fear come to pass. We have a President elected on a platform of denouncing the press, "investigating" protest movements, and "opening up" libel laws (however little he can actually do so). We have an administration and its powerful, megaphone-equipped sycophants who define entire diverse protest groups — Black Lives Matter, as one example — by the violent actions or rhetoric of a tiny fraction of their members, and suggest that the state should treat the whole based on that part. (This, ironically, is exactly what the Nazis are now complaining that people are doing.) Rhetoric from officials and their media supporters about protest groups is full of accusations of incitement of crime and group criminality and conspiracy. Across the country, conservative legislators rush to craft statutes to protect people who run over protesters with cars. The NRA, one of the most powerful lobbying groups in the country, is putting out chillingly totalitarian propaganda videos to gun owners portraying protest against the regime as uniformly violent and criticism of the President as "inciting" that violence, and exhorting them to defend themselves and the regime from the violent protesters and their inciters. And we have a President who seems to respect no American norms.

What do we do when we near the bottom of the slippery slope?

These are hard times. Our values should be our beacons to lead us through them. Those values include due process, the rule of law and equality of all people before it, and freedom of speech and worship.

The Nazis, whether armed with rifles or clownishly clad in khakis, stand against our values — they stand for the proposition that some of us are less American than others by birth, and that America must be "preserved" to the tastes of a particular narrow ethnic prejudice. Nazis attacking and threatening our fellow Americans threaten not just their immediate targets but the foundations of everything we've built. Decent Americans should speak, organize, and lead against them. This is the end of another classic hypothetical — what would you do if America's most shameful ancient wrongs were resurgent? What would you do if the Nazis started marching again?

But you cannot destroy a value in order to save it. Nazis — like terrorists — hope that we will abandon principles and fundamentally change who we are out of fear. Assault is assault, threats are threats, murder is murder, and all of them should be vigorously investigated and prosecuted. The allowance for self-defense by those threatened by Nazis should reasonably be generous. But despicable speech is protected by the First Amendment, and should remain so. Our present circumstances show why it is sheer terrified madness to entrust a broad power to prevent or punish speech upon a fickle state. We've flirted with that madness of abandoning rights in pursuit of safety for our nation's whole life. The flirtation has turned sordid and degrading during the War on Crime and frankly self-destructive after 9/11. It would be philosophical suicide to hasten it now by giving a government — a visibly terrible and amoral government — the power to regulate speech. This is the final hypothetical come to pass: if the state asked you to give up freedoms in exchange for a dubious promise it would make you safer, would you do it? Would you convince yourself that the state would only use the power against Them, and not you?

We're a long way from perfect. But we are better than this place we find ourselves. We can climb out of it.

Copyright 2017 by the named Popehat author.
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Posted by Ken White

I know you've already explained things twice this week but I have questions.

no mas. no mas.

No, this time it's not about search warrants or grand juries. It's about John Oliver.

Is the question "will smug ridicule take down Trump this time for sure even though it never has before?"

So hostile! Drink some coffee. No, the question is about that defamation case against him.

What about it?

Everyone seems to think that the defamation case is obviously bogus. But I read that Oliver just lost some sort of important motion. What's going on?

The defamation case filed by squirrel fancier, Dr. Evil wannabe, and long-time vexatious litigant Robert E. Murray against John Oliver and HBO is patently frivolous. It's a my-team-pleasing screed, a mawkish whinefest about an entertainer engaging in First-Amendment-protected satire and ridicule. If his attorneys had any character or ethics they'd be ashamed. The ACLU filed an arguably self-indulgent but still pretty thorough brief ripping the foolish suit apart.

So if it's so bogus, how did John Oliver lose an important motion?

Well, Murray filed the defamation suit in state court in West Virginia, Oliver's attorneys removed the case to federal court, and the federal judge just remanded it to state court.

Oh. Well, that's clear. I see. Yes. Totally.

You have no idea what any of that means.

No I do not.

Okay. Federal courts are courts of "limited jurisdiction." That means you can't just bring any case to federal court. You can only bring cases in areas where the federal courts have been given authority by the Constitution and federal law.

There are two main types of federal court jurisdiction. The first is federal question jurisdiction. So if you sue me for copyright infringement, or a federal civil rights violation, or even — God help me — RICO, you can file that lawsuit in federal court.

The second main type of federal jurisdiction is diversity jurisdiction. The Founders put diversity jurisdiction in the Constitution because they were concerned that state courts might not be fair to litigants from another state. Diversity jurisdiction works like this: if the plaintiffs are all from different states than the defendants, and the "amount in controversy" — the amount being demanded — is high enough, the case can be filed in federal court.

But Murray's case was filed in West Virginia state court, not federal court.

That's right. But when a plaintiff files a case in state court, and the defense thinks that case is eligible for federal jurisdiction under federal question or diversity jurisdiction, the defense can move it to federal court. That's called removal. Once there, the plaintiff can file a motion asking the federal judge to send it back to state court on the grounds that it's not actually eligible for federal jurisdiction. That's called remand.

Is it all actually more complicated than that?

Oh hell yes. There's all sorts of complicated questions. How do you figure what state a party is from, especially if they're a multi-state company? How do you tell how much is in dispute if it's not spelled out in the complaint? What happens when a case has federal causes of action (like copyright) and state causes of action — does the federal judge always have to hear the state causes of action? This is what litigators do all day.

So what happened here?

John Oliver's attorneys predictably removed the case to federal court. They thought they'd get a fairer shake from a federal judge, and probably that a federal judge would respond better to complex First Amendment arguments and good briefing.

Murray's attorneys, predictably, asked the federal judge to remand the case. Some of the plaintiffs in the case are Murray's companies, some of which are incorporated in Delaware. HBO, one of the defendants, is also incorporated in Delaware.

So, that means that there was no diversity jurisdiction, because all of the plaintiffs weren't from different states than all of the defendants, right? Why would the defendants try to remove to federal court, then?

John Oliver's attorneys had a theory. There's a doctrine called "fraudulent joinder." The idea is that a plaintiff can't add on plaintiffs with no plausible claims or defendants with no plausible liability simply to destroy diversity and prevent removal. Oliver's lawyers argued that Murray's companies themselves didn't have plausible claims because all of Oliver's ridicule was about Murray, and so the only reason the companies were added was to prevent diversity and stay out of federal court.

The United States District Court Judge rejected that theory and remanded the case to state court. The judge pointed out that it's extremely difficult for a defendant to prove fraudulent joinder. A defendant has to show that even if the court accepts all of the plaintiffs' factual and legal allegations, it's still clear that the fraudulently joined party doesn't belong in the case — that there is "no glimmer of hope" for relief for or against that party. The court found that because the satire and ridicule about Murray concerned the way he ran his companies, those companies were plausibly implicated in the statements and could plausibly assert defamation on the grounds that the statements were about them. So — because some of the plaintiffs and one of the defendants are "from" the same state (in the sense that they're all corporations incorporated in Delaware), there's no diversity jurisdiction, and the case had to go back to state court.

Does that mean that the federal court agreed with Murray and rejected John Oliver's First Amendment defenses?

No. Though Oliver argued the First Amendment points in his opposition to remand, I don't think it was a good argument — that's an argument that the entire case is bogus, not that the case against the companies in particular is bogus. It has nothing to do with whether the companies were fraudulently joined. The federal judge didn't address the speech defenses at all, and emphasized repeatedly that the standard on the motion is extremely favorable to the plaintiff, requiring the defendant to show that even if you assume all of the plaintiff's legal and factual arguments are right that the party still doesn't belong in the case. So it doesn't reflect a judgment on the speech defenses at all.

For what it's worth, John Oliver's lawyers also previewed their speech defenses in an brief in opposition to Murray's utterly ridiculous demand for an order forcing everyone to stop making fun of him. Murray's lawyers didn't even reply to the substance — they just submitted a short brief saying, in effect, it was none of the federal court's business, because the state court should hear it.

Murray seems pretty confident that a West Virginia state court will give him what he wants. Is he right?

I would not assume he is.

Look, I'm as vulnerable to big-city big-school big-firm lawyer attitudes as anyone. But over my career, especially in criminal cases, I've seen judges in courts that big-city people would call "rural" or "remote" or "conservative" give my clients some of the most thorough, prepared, thoughtful treatment I've seen in any court. I've learned, often happily, not to make such assumptions.

So John Oliver and HBO should definitely win?

I wouldn't go that far either. I'd wait and see.

West Virginia doesn't have an anti-SLAPP statute. That is, they don't have a statute that allows defendants in clearly bogus censorious cases get out early and collect attorney fees. That makes it much harder to get rid of even a transparently bogus lawsuit and much easier for Murray's lawyers to abuse the law to harass and retaliate against John Oliver for ridiculing their client.

There are two problems here. One is the lack of consistently strong anti-SLAPP statutes across the country. The other is the continued existence of unethical, thuggish lawyers frankly hostile or indifferent to core American values who are willing to abuse the system in pursuit of the "principle" that rich people ought not have to tolerate criticism or mockery. These are simply bad people, and they should be treated that way. They are aided — probably deliberately, by people who do not honestly support the American value of free speech — by the general anti-media sentiment cultivated by some elements of society.

Wow.

Yeah. So, you know, fuck those guys.

Copyright 2017 by the named Popehat author.
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Posted by Ken White

This series is about my investigation of a mail fraud ring that attempted to scam my firm, the history of its bad actors, and the methodology that I used to look into it. You can see the whole chapter index here.

Just shy of six years ago, in September 2011, a direct-mail scammer tried to scam my firm. I sent his lawyer an email calling him out. The scammer — David Bell — called me and tried to con me. So I started to write about it.

This week he pleaded guilty to two federal felonies for the scam.

Popehat regulars are familiar with the "Anatomy of a Scam" series, in which I used David Bell's fraudulent enterprise to illustrate how you can use the internet to investigate and expose scammers. Most recently, in Chapter 14, I talked about how he had finally been indicted for federal crimes related to two different scams: the one he tried on my firm and one he tried on payroll firms.

This week, two years after his indictment, David Bell pleaded guilty to one count of wire fraud in violation of 18 USC 1343 and one count of mail fraud in violation of 18 USC 1341. The minute order reflecting his guilty plea is here. He pleaded guilty to counts three and five of the indictment against him. Significantly, that means he admitted to both schemes charged in the indictment. In one scheme, he scammed payroll companies: he pretended to hire them to handle payroll for his employees, gave them bank account information for accounts to back the payroll, and got them to issue pay to his employees from the payroll company's account, only to discover that Bell did not have the funds to repay the payroll companies. In the second scheme — the one he tried on my firm — he sent out fraudulent solicitations designed to look like invoices for services rendered, even though he hadn't rendered services, hoping that companies would just pay without noticing that the solicitations were fraudulent.

You can read his plea agreement here. The part where he admits to the facts supporting the plea is on pages 9 – 13.

How much time will he get when he's sentenced? Hard to say. Federal sentences are based in part on the recommended sentence calculated under the United States Sentencing Guidelines, as I've described here before. Bell's plea agreement agrees to some, but not all, of the applicable sentencing factors; for instance, it looks like they agreed to argue at sentencing what the loss was from the mail fraud scheme. The agreement shows that the feds plan to seek numerous Sentencing Guideline enhancements. Bell has a robust history of criminal fraud; in his own motion asking the judge to prevent the government from cross-examining him with his prior convictions, he admitted a felony obtaining money under false pretenses conviction in 2002, a felony insufficient funds conviction in 2002, grand theft and insufficient funds convictions in 2004, and two felony grand theft auto convictions in 2014. In the plea Bell waived his right to appeal his sentence as long as it is 108 months (that's 9 years) or lower, which gives you a rough idea of what the parties are expecting. I think there's an excellent change that David Bell will be sentenced to at least 9 years in federal prison. He'll actually serve at least 85% of that.

Genuine career con artists frighten me in a way that violent criminals don't. I've encountered quite a few of them, and they're missing something human. They seem utterly irredeemable. David Bell will find it much harder to victimize people while he's in federal prison, and that's likely the only way to stop him from doing it. People like this don't reform or stop until they die.

Anyway, good show by the United States Postal Inspectors and the U.S. Attorney's Office.

A postscript: Chapter Fifteen of this series could have been quite different. Now that he's pleaded guilty, I feel comfortable revealing that the feds subpoenaed me to be a rebuttal witness at trial. That would have been interesting.

Copyright 2017 by the named Popehat author.
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Posted by Ken White

You promised a second chapter of the federal grand jury lawsplainer!

i do what i want

That's fine. Because I want to ask about something else anyway.

You have the attention span of a fruit fly. What is it now?

Did you hear? FBI agents working with Special Counsel Robert Mueller raided the house of Paul Manafort, Trump's campaign manager!

Yes. That's . . . that's quite a thing, there.

What does it mean? What can we tell from it? What's a search warrant anyway?

Please try to calm down.

Okay, first. Have some skepticism about this story — and about any media story about the federal criminal justice system. Stories about federal criminal justice, even from respected publications, are often wrong in crucial ways — using legal terms they don't understand the wrong way, drawing incorrect conclusions about routine events, and so forth.

But we can believe that about everything else?

Yes, I assume that except for criminal justice and First Amendment law, I'm confident they're perfectly reliable.

Anyway, let's talk about this search warrant.

The Fourth Amendment requires the government to get a search warrant before they search your house, absent an unusual exception like "exigent circumstances." (So, for instance, the cops can run into your house and look around if a guy with a gun just ran in there.)

How do the feds get a search warrant?

In the federal system, federal agents present search warrant applications to United States Magistrate Judges for review. Magistrate Judges aren't nominated by the President and confirmed by Congress like United States District Court judges — they are appointed by other federal judges for set terms, and have a reduced level of authority and responsibility. They do a lot of the unglamorous day-to-day work of the federal judiciary.

The magistrate judge reviews the search warrant application and, almost always, signs the warrant approving it.

What's in a search warrant application?

State warrant applications are sometimes oral. Federal applications are almost always in writing. The bulk of the warrant application is the affidavit — a sworn statement by a federal agent setting forth the facts establishing probable cause. Then there's the draft warrant itself, which must specify the locations to be searched and the particular items to be seized.

So to search my house a federal agent has to show probable cause that I committed a crime?

No. Probable cause to search is different that probable cause to arrest.

To get a federal search warrant, you have to show probable cause that the location you want to search contains evidence of a federal crime — specifically, the items you list as things you want to seize in the search. You don't have to show that the homeowner or other person at the site committed a crime, just that items there are evidence of a crime.

It sounded like you were suggesting that magistrate judges sign off on search warrants no matter what.

Well, I think that magistrates can be a little rubber-stampy at times. But probable cause is a pretty low bar. And federal search warrant applications are generally much better than state search warrant applications, which are often so vague and scattered that you wonder why we bother at all.

Federal courts are somewhat better at policing bad warrants than state courts are. Federal courts, traditionally, have held warrants to a higher standard. And federal prosecutors typically review warrants and edit them before agents present them to magistrate judges, so there's an additional level of review to catch problems. That's why federal search warrant applications in complex cases are commonly dozens or even more than a hundred pages long.

So, for example, here is a warrant affidavit from a federal case involving hacking and extortion. It's neither unusually complicated nor unusually long, but gives you a sense of what a reasonably thorough application can look like.

What kind of problems to the prosecutors reviewing the warrants look for?

Prosecutors trying to assure a good warrant look for attribution — for language explaining how the agent knows what he or she is telling the magistrate. "I want to search the house because the homeowner buried a body in the back yard" is bad attribution; it's a conclusion. "I reviewed a report by FBI Special Agent Rex Strongchin. SA Strongchin wrote that he spoke to Sally Neighbor, who lives next door to the homeowner. Ms. Neighbor told SA Strongchin that on August 1st, whilst up in the middle of the night medicating her asthmatic cat, she looked out the bathroom window and saw the homeowner in his back yard, pushing what appeared to be a body into a hole" is good attribution. It establishes every link in the chain to who knew what and how. That's part of establishing probable cause.

Another common problem is specificity in items to be seized. Warrants are supposed to be reasonably particular in describing what can be seized. The Fourth Amendment was actually designed to address the problem of "general warrants" letting officials just toss your house for everything and anything. A good warrant describes, as narrowly and specifically as possible, what can be seized and why those things are evidence of a crime.

Oh. So federal agents only seize what the warrant tells them to seize?

Ha, no.

Even the best-trained and most responsible federal agents — and I mean this with the utmost respect — tend to act like coked-up raccoons when you turn them loose with a search warrant. They seize stuff haphazardly, based on very odd internal definitions of what "evidence" is. This used to drive me absolutely bonkers as a prosecutor, because I would hector them in advance and review the items to be seized with them, and they'd come back with a box of randomly assembled documents as if I'd said "look, just grab everything with a 'q' on it."

Okay. I want to ask more about the search warrant at Manafort's house. The article said the raid was "pre-dawn." Is that unusual?

Well, first of all, take it with a grain of salt. "Pre-dawn raid" is a stock literary phrase, like "wine-dark sea" in Homer. Exercise some skepticism about whether it really was pre-dawn.

Federal search warrants are supposed to be served during "daytime hours," meaning between 6 a.m. and 10 p.m. But the magistrate judge can approve other hours. In drug cases, because Drugs Are Bad And Dangerous and Imperil Our Children, it's presumed magistrates can approve nighttime searches. Otherwise, magistrates are supposed to balance the citizen's right to privacy against government need.

Most often the asserted need has to do with perceived physical danger. But assuming that the feds didn't expect Manafort to show up on his porch in a flowered robe and a submachinegun saying "say hello to my little friend," I suspect that the feds told the magistrate that they were afraid that Manafort was imminently going to destroy evidence because he'd been quizzed by the staff of the Senate Intelligence Committee. They probably said they believed that based on what he was asked he learned new avenues of investigation and might destroy documents and so an immediate search was necessary. That's exactly the sort of prosecutorial hypothesis that magistrate judges tend to rubberstamp. They might have also offered some hand-wavey stuff about how searching during the day would result in a media shitstorm on the street impeding their investigation and so forth.

So it sounds as if we should read the search warrant affidavit if we want to know what Robert Mueller thinks about this investigation. Since it had to establish probable cause it should have lots of juicy details. Can we get it?

Absent a leak, no.

The search warrant affidavit isn't a publicly available document — at least not at this stage of the case. The agents only leave the warrant itself on the scene. The warrant states the place to be searched, the items that can be seized, and what the items are believed to be evidence of — that is, the specific federal criminal statutes at issue. So Manafort and his lawyers have that information, from which they can glean some information — you can draw conclusions based on what items the prosecutor is looking for and what crimes the prosecutor thinks have been committed. But generally the prosecution doesn't release the search warrant affidavit — the juicy stuff — until discovery in any resulting criminal prosecution.

Occasionally federal agents will accidentally leave the search warrant affidavit on the premises. Once a prosecutor asked me to make my client return the affidavit because it was confidential information. I laughed for a very long time.

What about what the FBI took from his house? Do we know that?

Well, Manafort knows that, obviously. And the FBI also leaves a sort of receipt — a list of the things they took. It tends to be very general, especially with regard to documents, like "one box of documents from hall closet." The federal agents return that to the magistrate judge, but it does not tend to be accessible to the public.

The article asserts that the FBI sized "various records." But be cautious about inferring anything about that. First of all, the only requirement is that there's probable cause to think those records are evidence of a crime, not evidence of a crime by Manafort. Second, as I said, FBI agents tend to be about as selective as a Golden Retriever thrust into a tennis ball pit. Third, law enforcement is not above seizing a bunch of shit just to make it look like their search was successful. In fact, they're not even above faking it. I represented a dude whose house was raided. The investigators tipped off the media to be there. They'd brought about a dozen prefab cardboard boxes to carry out documents they seized. But they found no documents. They didn't want to walk out empty-handed, so they assembled the cardboard boxes inside the house, put on the lids, and solemnly carried the empty boxes out to their raid van. The press obediently printed that many boxes of documents had been seized.

What do you think about Robert Mueller ordering the search in the first place? Is it unusual?

Yes, it is.

We know that Mueller has started using a grand jury actively. Generally federal prosecutors tend to issue search warrants at the end of white collar investigations, not at the beginning. Search warrant raids tend to put everyone on high alert and shut people down. Federal prosecutors generally like to use the grand jury to develop witnesses and evidence before that, and subpoenas demanding production of documents are more common in white collar investigations than search warrants.

There are a few reasons Mueller might have gone with the search warrant. He might have genuinely believed that Manafort couldn't be trusted to turn over documents in response to a subpoena. He might have thought that Manafort would hold documents back, or that he was even going to destroy documents. He might even have had some sort of intel suggesting that Manafort was already destroying documents. He might have used the search warrant as a shock-and-awe measure to scare other people in the investigation into cooperating or provoke them into doing dumb things. Whatever else he is, Robert Mueller is very experienced and professional. I'm sure he did it deliberately and with a plan.

Why would he want to provoke people?

Federal grand jury investigations can be like a Game of Thrones plotline. To finish you, federal prosecutors don't necessarily have to prove that you already committed a crime — they can simply play upon your human flaws and get you to finish yourself. High-profile defendants are routinely taken down not based on the initial crime they committed, but by their reckless response to the investigation — they're ended not by the crime, but by the ineffectual coverup. Mueller knows what he's doing, knows that he's dealing with unusually volatile personalities particularly unsuited to patient inaction, and is probably counting on people to react foolishly, self-destructively, and criminally to startling events like a search warrant.

Copyright 2017 by the named Popehat author.

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