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At the direction of Attorney General Bill Barr, the Justice Department last week moved to dismiss a false-statements charge against Michael Flynn, President Trumps former national security adviser. The reason stated was that the continued prosecution would not serve the interests of justice.

The motion was signed by Timothy Shea, a longtime trusted adviser of Mr. Barr and, since January, the acting U.S. attorney in Washington. In attempting to support its argument, the motion cites more than 25 times the F.B.I.s report of an interview with me in July 2017, two months after I left a decades-long career at the department (under administrations of both parties) that culminated in my role as the acting assistant attorney general for national security.

That report, commonly referred to as a 302, is an interesting read. It vividly describes disagreements between leadership of the Justice Department and the F.B.I. about how to handle the information we had learned about Mr. Flynns calls with the Russian ambassador Sergey Kislyak and, more specifically, Mr. Flynns apparent lies about those calls to incoming Vice President Mike Pence.

But the report of my interview is no support for Mr. Barrs dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.s interview of Mr. Flynn which led to the false-statements charge was unlawful or unjustified. It does not support that Mr. Flynns false statements were not material. And it does not support the Justice Departments assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, would not serve the interests of justice.

I can explain why, relying entirely on documents the government has filed in court or released publicly.

Notably, Mr. Barrs motion to dismiss does not argue that the F.B.I. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak. It doesnt claim that they violated his Fifth Amendment rights by coercively questioning him when he wasnt free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment. Any of these might have justified moving to dismiss the case. But by the governments own account, the interview with Mr. Flynn was voluntary, arranged in advance and took place in Mr. Flynns own office.

Without constitutional or statutory violations grounding its motion, the Barr-Shea motion makes a contorted argument that Mr. Flynns false statements and omissions to the F.B.I. were not material to any matter under investigation. Materiality is an essential element that the government must establish to prove a false-statements offense. If the falsehoods arent material, theres no crime.

The department concocts its materiality theory by arguing that the F.B.I. should not have been investigating Mr. Flynn at the time they interviewed him. The Justice Department notes that the F.B.I. had opened a counterintelligence investigation of Mr. Flynn in 2016 as part of a larger investigation into possible coordination between the Trump campaign and Russian efforts to interfere with the presidential election. And the department notes that the F.B.I. had intended to close the investigation of Mr. Flynn in early January 2017 until it learned of the conversations between Mr. Flynn and Mr. Kislyak around the same time.

Discounting the broader investigation and the possibility of Russian direction or control over Mr. Flynn, the departments motion myopically homes in on the calls alone, and because it views those calls as entirely appropriate, it concludes the investigation should not have been extended and the interview should not have taken place.

The account of my interview in 2017 doesnt help the department support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does. What the account of my interview describes is a difference of opinion about what to do with the information that Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and others in the incoming administration about whether he had discussed the Obama administrations sanctions against Russia in his calls with Mr. Kislyak. Those apparent lies prompted Mr. Pence and others to convey inaccurate statements about the nature of the conversations in public news conferences and interviews.

Why was that so important? Because the Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pences and others denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pences denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.

The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia which the intelligence community had just assessed had sought to interfere in the U.S. presidential election might have leverage over him.

This is where the F.B.I. disagreed with the Justice Departments preferred approach. The F.B.I. wasnt ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat.

Thats exactly why we wanted to alert the incoming administration. Ultimately, after our dispute over such notification continued through the inauguration and into the start of the Trump administration, the F.B.I. without consulting the Justice Department arranged to interview Mr. Flynn. By the time Justice Department leadership found out, agents were en route to the interview in Mr. Flynns office.

The account of my July 2017 interview describes my departments frustration with the F.B.I.s conduct, sometimes using colorful adjectives like flabbergasted to describe our reactions. We werent necessarily opposed to an interview our focus had been on notification but any such interview should have been coordinated with the Justice Department. There were protocols for engaging with White House officials and protocols for interviews, and this was, of course, a sensitive situation. We objected to the rogueness of the decision by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh in.

The Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.s justification for not wanting to notify the new administration about the potential Flynn compromise as vacillating from the potential compromise of a counterintelligence investigation to the protection of a purported criminal investigation. But that vacillation has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynns lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trumps presidential campaign and Russias efforts to interfere in the 2016 election.

And perhaps more significant, it has no bearing on whether Mr. Flynns lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.

In short, the report of my interview does not anywhere suggest that the F.B.I.s interview of Mr. Flynn was unconstitutional, unlawful or not tethered to any legitimate counterintelligence purpose.

Mary B. McCord, the former acting assistant attorney general for national security at the Department of Justice, is legal director for Georgetown Laws Institute for Constitutional Advocacy and Protection and a visiting law professor.

The Times is committed to publishing a diversity of letters to the editor. Wed like to hear what you think about this or any of our articles. Here are some tips. And heres our email: letters@nytimes.com.

Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.

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Bill Barr Twisted My Words in Dropping the Flynn Case. Heres the Truth. - The New York Times

Since the onset of the COVID-19 pandemic, which in these parts was in early March, I have found the data-gathering practices on actual cases, hospitalizations, and deaths unhelpful.

Everyone has.

In full disclosure, I had to take college algebra twice to get a passing grade.

This is no slight on Mrs. Haines or GSHS, but you may want to take with a grain of salt anything I might write related even obliquely to math (unless, of course, it has to do with the Electoral College, where numerical reason always gets offended and leaves the room in a snit).

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Youd think that in the 21st Century, U.S. data gathering and reporting would be spit-polished by ubiquitous technologies like iPhones and wireless networks, but alas, the garbage-in-garbage-out proposition still applies, perhaps now more than ever.

Despite my questionable math background, early on in the pandemic I dumped TV news in favor of Bings COVID-19 Tracker to get a clearer picture about where and how quickly the virus was spreading.

However, I soon gave up on Bing for some of the same reasons I soured on TV news.

Unlike the news, Bings COVID-19 Tracker allocates a spot for recoveries. Like the news, they dont put a number to it usually.

Even as I write, the map lists no recoveries in Colorado and most other states.

I thought maybe recovery data gets protected by HIPPA or the Fourth Amendment, and perhaps some of it does, but some states do cite recoveries.

Wyoming, for example, showed 596 cases earlier this week, 391 of which had recovered. Colorado, on the other hand, shows no recoveries but dutifully updates the total number of cases daily, which on Wednesday exceeded 17,000.

In fairness, KDVR did cite Colorado recovery statistics from CDPHE for about three days. KDVR still leads every broadcast with a fuss over cumulative cases, hospitalizations and fatalities, but apart from an occasional human interest piece on a patients hospital departure, theres little mention of recoveries.

Its not just the absence of recovery data that makes data on COVID-19 unhelpful.

Last month I watched as a news anchor unashamedly reported on live TV that a spike in COVID fatalities was partially due to previously unreported deaths attributed to the virus. The gist of the story was something like, CDPHE found numerous COVID-19 fatalities from previous weeks, so they have been added to todays number.

Its like they had no idea what to do, so they plugged them into the nearest slot.

The tendency of fatality reporting to gin up foreboding has been well-understood since the days of Walter Cronkite, but this kind of sloppy data gathering turns a new leaf. Yet, Colorado and communities like Glenwood Springs base decisions on whether to end mask-wearing ordinances and lift restaurant restrictions on this data.

Modeling based on solid data testing, active cases, hospitalizations, recoveries and mortality strikes me as a valid basis for making decisions about precautionary measures, but that validity unravels if you ignore recoveries, dismiss the temporal integrity of deaths, and focus mainly on cumulative active cases, hospitalizations and fatalities.

That focus yields one grim picture.

Holy moly, Myrtle, you end up saying as you smack your forehead with the palm of your hand, Theres over 17,000 COVID cases in Colorado!

View that number through the prism of recoveries and a different picture emerges.

Of course, we dont see that picture because somewhere along the way someone decided recoveries dont matter as much as active cases and fatalities, or something like that.

Last month Gov. Jared Polis referenced the use of cellphone metadata to analyze human movement and determine the efficacy of stay-at-home orders. He could certainly get his hands on recovery data if he wanted it Fourth Amendment rights or not.

So, listen carefully, friends, whenever someone trots out COVID-19 statistics. The vision of what a hopeful future looks like is often in what the voices of public trust dont say.

Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at postindependent.com.

More:
Mulhall column: Reading the COVID-19 tea leaves - Glenwood Springs Post Independent

from the authoritarian-nonsense dept

We've been writing a number of pieces lately about how incredibly dangerous China's internet censorship has been during COVID-19, from silencing medical professionals to hiding research results tod trying to ignore Taiwan's success in fighting COVID-19, it's shown a pretty clear pattern that Chinese internet censorship is literally killing people. This is not to say that the US government's response has been much better -- it's obviously been a disaster, but at least we have more free speech online and in the press, which is enabling all sorts of useful information to spread.

But you might not know that if you read this odd piece in the Atlantic by Jack Goldsmith and Andrew Keane Woods arguing that China has the right approach to handling free speech online during a pandemic, and the US has not. While the overall piece is, perhaps, a bit more thoughtful than the headline and tagline, it has moments that simply defy any sense of what's happening in the world.

In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a societys norms and values.

Again, this defies all evidence of what we've seen to date.

The piece, bizarrely, conflates pervasive digital surveillance with open free speech online:

Two events were wake-up calls. The first was Edward Snowdens revelations in 2013 about the astonishing extent of secret U.S. government monitoring of digital networks at home and abroad. The U.S. governments domestic surveillance is legally constrained, especially compared with what authoritarian states do. But this is much less true of private actors. Snowdens documents gave us a glimpse of the scale of surveillance of our lives by U.S. tech platforms, and made plain how the government accessed privately collected data to serve its national-security needs.

And that's got literally nothing to do with America's approach to free speech online.

The "second" wake up call does relate to speech, but perhaps not in the way the authors mean:

The second wake-up call was Russias interference in the 2016 election. As Barack Obama noted, the most consequential misinformation campaign in modern history was not particularly sophisticatedthis was not some elaborate, complicated espionage scheme. Russia used a simple phishing attack and a blunt and relatively limited social-media strategy to disrupt the legitimacy of the 2016 election and wreak still-ongoing havoc on the American political system. The episode showed how easily a foreign adversary could exploit the United States deep reliance on relatively unregulated digital networks. It also highlighted how legal limitations grounded in the First Amendment (freedom of speech and press) and the Fourth Amendment (privacy) make it hard for the U.S. government to identify, prevent, and respond to malicious cyber operations from abroad.

Yes, the Russians conducted a misinformation campaign -- but it still remains unclear how effective that was beyond at the margins (and, to be fair, in a close election, the margins can be meaningful). But that's hardly a reason to throw out the 1st Amendment. The 1st Amendment has also allowed there to be widespread discussion and debate about all of this, and has helped to get companies better situated to deal with and respond to disinformation campaigns. It has also allowed tons of people to be on the digital frontlines pointing out mis- and dis-information and working on responding to it to limit its impact. There will always be some and there will always be attempts to exploit it, but the idea that China's approach is better seems totally counterfactual to reality (or what plenty of people who have suffered from Chinese internet censorship will tell you).

Incredibly, the authors blame Section 230 for "the free for all" online... but then when they talk about the companies trying to combat disinfo just two paragraphs later, they somehow miraculously leave out the fact that it's Section 230 and the 1st Amendment that allow them to moderate the content on the platform:

Ten years ago, speech on the American Internet was a free-for-all. There was relatively little monitoring and censorshippublic or privateof what people posted, said, or did on Facebook, YouTube, and other sites. In part, this was due to the legal immunity that platforms enjoyed under Section 230 of the Communications Decency Act. And in part it was because the socially disruptive effects of digital networksvarious forms of weaponized speech and misinformationhad not yet emerged. As the networks became filled with bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content, private platforms faced growing pressure from governments and users to fix the problems.

[....]

After the 2016 election debacle, for example, the tech platforms took aggressive but still imperfect steps to fend off foreign adversaries. YouTube has an aggressive policy of removing what it deems to be deceptive practices and foreign-influence operations related to elections. It also makes judgments about and gives priority to what it calls authoritative voices. Facebook has deployed a multipronged strategy that includes removing fake accounts and eliminating or demoting inauthentic behavior. Twitter has a similar censorship policy aimed at platform manipulation originating from bad-faith actors located in countries outside of the US.

It's the American approach to free speech that makes this even possible.

Then the article argues that misinformation in the age of COVID-19 is something... new. And that it's so serious that perhaps we should change how we think about free speech:

What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated normal to return to. We liveand for several years, we have been livingin a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.

Note that they seem to be conflating a few things here. There is the US government's approach to speech (bound by the 1st Amendment, there are very few areas where speech may be limited), and there are internet companies' approaches to hosting speech upon their private platforms. And while those platforms are becoming more aggressive in cracking down on misinformation, there remain plenty of other platforms online that are chock full of misinformation as well. But that's got little to do with our laws (beyond the fact that, as noted above, the 1st Amendment enables platforms to decide for themselves how to handle these things).

But it seems odd for an article that suggests a governmental approach to stifling speech is a good idea literally days after the US President suggesting injecting disinfectant into people as a way to deal with COVID-19. It's not the internet that is the cause of misinformation, guys. And saying that government should crack down on misinformation isn't going to work when it's the head of state spouting off the misinformation, which is then broadcast live by TV networks.

The article then tries to tie free speech to surveillance, but I'm unclear why or how those two things are as connected as the article suggests they are. You can have one without the other -- yet the article continues to assume that if you want free speech, then you must have mass surveillance along with it. It uses the examples of Clearview AI and Ring as examples of greater surveillance, but those have little to nothing to do with the American approach to free speech.

The article all too glibly insists that private company data tracking is the "functional equivalent" of the infamous social score now used in China, without recognizing a number of fundamental differences -- with the largest being the fact that the social score in China is a government program and is used in all sorts of nefarious ways. Yes, the article argues that thanks to COVID-19 it's likely that the US government and companies will be more closely tied, but gives no reason to support that conclusion as inevitable:

Apple and google have told critics that their partnership will end once the pandemic subsides. Facebook has said that its aggressive censorship practices will cease when the crisis does. But when COVID-19 is behind us, we will still live in a world where private firms vacuum up huge amounts of personal data and collaborate with government officials who want access to that data. We will continue to opt in to private digital surveillance because of the benefits and conveniences that result. Firms and governments will continue to use the masses of collected data for various private and social ends.

The harms from digital speech will also continue to grow, as will speech controls on these networks. And invariably, government involvement will grow. At the moment, the private sector is making most of the important decisions, though often under government pressure. But as Zuckerberg has pleaded, the firms may not be able to regulate speech legitimately without heavier government guidance and involvement. It is also unclear whether, for example, the companies can adequately contain foreign misinformation and prevent digital tampering with voting mechanisms without more government surveillance.

The First and Fourth Amendments as currently interpreted, and the American aversion to excessive government-private-sector collaboration, have stood as barriers to greater government involvement. Americans understanding of these laws, and the cultural norms they spawned, will be tested as the social costs of a relatively open internet multiply.

COVID-19 is a window into these future struggles.

Perhaps. It will certainly be interesting to see where the future heads, but the idea that COVID-19 inevitably means that the US will be less speech protective in the future is far from the only possible path forward. And the idea that China somehow has the right idea has little support anywhere. The authors may be correct that the government will try to expand surveillance and limit speech, but that's been happening for years. COVID-19 changes little in that regard.

Filed Under: andrew keane woods, authoritarianism, censorship, content moderation, covid-19, free speech, freedom, internet, jack goldsmith, moderation, pandemic, surveillance

Read more:
How Can Anyone Argue With A Straight Face That China's Approach To Speech Online Is Better Than The US's During A Pandemic - Techdirt

Floridas junior US senator is quite a guyas hed be the first to tell you. Hes worth over $250 million, and youre not.

Rick Scott has no sympathy for these grasping whiners who lost their little jobs in the coronavirus pandemic and now have the gall to expect a government hand-out.

Who do they think they are: Boeing?

Scott sent a fundraising email on April 23rd to his well-connected and richly-upholstered campaign donors complaining that, Businesses looking to reopen are telling us their employees dont want to come back to work because they collect more on unemployment.

Under Congresss Coronavirus Aid, Relief and Economic Security (CARES) Act, these laid-off layabouts could theoretically get $600 a week to do absolutely nothing.

(Scott, of course, voted for CARES, but it pained him. Truly it did).

After all, $600 a week is lavish: enough to cover the rent, maybe the car payment, some ramen noodles, and a four-pack of tuna. You might have to let the health insurance slide, but theres always the emergency room, right?

Most of the aid money is federal, but you have to apply though the state.

Problem is, the state system, to put it mildly, aint working.

You cant get anyone on the phone; it can take a week to breach the online portal; and half the time, it crashes. Around 40 percent of those who somehow manage to fill in the forms discover they are supposedly ineligibleeven though they meet all the criteria.

To date, more than 1.8 million people have applied, but only about eight percent have received a check.

Now, who do you suppose we have to thank for what one Republican insider calls this sh-t sandwich?

Rick Scott.

Scott, you see, shelled out $77 million in taxpayer money for the glitch-prone, security-challenged, crash-happy, slow-as-Christmas CONNECT system. It never worked right. It wasnt supposed to. As an adviser to Gov. Ron DeSantis (whos been highly critical of CONNECT) recently told Politico, it was designed to fail.

The former governor, elected to the Senate by the skin of his capped teeth two years ago, signed legislation in 2014 requiring people trying to get that princely $275 a week in unemployment compensation to answer a 45-question skills questionnaire and prove they tried to get hired by at least five possible employers every week.

Many were rejected anyway, owing to some ill-defined charge of misconduct.

Scott, a person of limited imagination, thinks that if youre poor its your faultand your sorry bone-idle ways should not be rewarded with a handout.

Like many pols, including Donald Trump, hes so thoroughly bought into his mythologized background he thinks he struck it rich entirely thanks to his own hard work and geniusinstead of what we might describe as a certain ethical flexibility.

Trump talks about his success as if the money he got from his dubious daddy and the loans from the Bank of China and Deutsche Bank were incidental, as if he pulled himself up by his own bone-spur-friendly boot straps.

Scott talks about himself as if he were born destitute in a log cabin he helped build and split rails until he joined the Navy, founded the hospital chain Columbia/HCA, made money, and became governor of the Sunshine State.

In truth, his Navy career was remarkable only for the way he bought Cokes onshore and re-sold at hugely-inflated prices to his fellow sailors. At Columbia/HCA he presided over one of the largest healthcare frauds in history. He invoked the Fifth Amendment against self-incrimination 75 times; and he finally walked away with $300 million in stock and optionssome of which helped him buy his way into the Florida Governors Mansion.

Like Trump, Scott equates money with intelligence and skilland quite possibly divine favor.

Business ber alles.

Those who pursue low-paid but intellectually-enriching fields are losers.

Public employees are losers. Teachers are losers.

When he was governor, Scott tried to force universities to push students into what he saw as lucrative careers in STEM subjects, instead of useless nonsense like anthropology, which should not be supported by state funds.

His own daughter majored in anthropology, but thats different. She comes from money.

Scott invented all kinds of ways to torment what he saw as the Undeserving Poor. He undercut public health facilities. He tried to mandate drug testing for all state workers, who are among the lowest-paid in the nation.

He also thought it would be a grand wheeze to drug test welfare recipientsat their own expense. If they didnt come out clean, they wouldnt get their benefits.

Scotts family happened to own a string of clinics which perform drug testing. What a coincidence.

Though he had allegedly gone to law school (SMU), Scott seemed to have never heard of the Fourth Amendment. The courts slapped him down.

Taxpayers still ended up paying $1.5 million in his legal fees.

In the midst of this deadly pandemic, Scott wants to underline the fecklessness of those who need public assistance and the way profligate Democrats enable them.

In a hysterical (not in the funny way) column for Fox News, Scott splutters that while decent American families stick to a budget, reusing tinfoil and cutting their own grass, Big Gubmint throws money to the unworthy.

He quotes Sen. Dick Durbin of Illinois saying of the CARES Act: if we err on the side of giving a hard-working family an extra thousand dollars or two thousand dollars because of our approach, so be it.

Clutch those pearls! You taxpayers, who have shelled out a mere $133 million (so far) to pay for Donald Trumps golf outings, should rise up and say this waste, fraud and abuse will not stand!

Rick Scotts counting on you to be as wet-hen mad as he is. Hes running for president in 2024 and rage is all hes gotrage and contempt.

See the article here:
Rick Scott, a man of no sympathy for "whiners who lost their little jobs" and try to access FL's glitch-prone, crash-happy unemployment...

More than half of respondents in the latest unscientific poll at SharylAttkisson.com say they do not trust the medical-related information widely reported on the news.

Of more than 1,500 respondents, 56% say they do not trust the information at all. Another 32% say they only "barely" trust the information.

One percent (1%) say they trust it "a lot" and 11% say they trust it "so-so."

Read the full results below. Meantime, be sure and vote in our latest poll at SharylAttkisson.com on the home page. Look for the black box in the right sidebar or scroll way down on the mobile site!

1% A lot

11% So-so

32% Barely

56% Not at all

1% Don't know/don't care

Fight improper government surveillance. Support Attkisson v. DOJ and FBI over the government computer intrusions of Attkisson's work while she was a CBS News investigative correspondent. Visit the Attkisson Fourth Amendment Litigation Fund. Click here.

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Most do not trust the medical-related info widely reported on the news (POLL) - Sharyl Attkisson