Friday, April 14, 2023

National Security: Crimes, Punishments and Malpractice

After nearly a weeklong search, on April 13, 2023, FBI agents captured and arrested a twenty-one year old active duty member of the Massachusetts Air National Guard as the leaker of hundreds of top secret military documents via an online Discord chat room ostensibly used by roughly two dozen teenagers and twenty-somethings to bond over their common love for guns, military gear and God. The suspect, Jack Teixeira, enlisted in the MANG in September 2019 and held the rank of Airman 1st Class after nearly four years -- only one grade above entry level -- and was assigned to Otis Air National Guard Base in Cape Code. Teixeira's assigned role at the base was PC support technician, responsible for troubleshooting problems with computers and the local network. That was apparently enough of a role for him to have access to document servers hosting documents with TOP SECRET clearances, cuz clearly the "engineer" who needs to help you reload your mouse driver after a bad Windows patch needs to be able to confirm you can still reach the Sharepoint with the minutes from last week's Joint Chiefs of Staff meeting on Ukraine strategy.

This case certainly merits review of the crimes involved to ensure appropriate punishments are applied for ALL parties involved, not just the immediate perpetrator. This case also highlights the need to review the larger failures within the American government to properly manage crucial security information. Those failures make crimes like this virtually inevitable as ever-larger quantities of secrets encounter an online world that simultaneously isolates people to accelerate their radicalization while making it easier to share content, whether stolen national security secrets or propaganda and mis-information aimed at further indoctrinating idiots into extremism.


National Security Crimes

Jack Teixeira needs to be executed. Period.

This is not a case of a leak of "stale" documents that might reflect analysis or strategies from five or ten years ago that might be seriously embarrassing or even damaging to American politicians or overseas sources. This isn't even a leak of documents reflecting current practices for data collection as part of domestic or overseas spying. The documents leaked reflected estimates of ammunition consumption by Ukrainian and Russian forces from existing stockpiles and expected replacement shipments (dates / quantities / locations). This information is second only to actual "command and control" communication about ACTUAL STRIKES to be taken in its criticality to the war. (By the way, Otis AFB is home to the 102nd Intelligence Wing of the Air Force which DOES manage command and control communications systems for the Air Force so it isn't clear if he ALSO had access to actual command and control networks and data as well.) Leaking this information to Russia may have allowed it to optimize its use of limited firing power to maximize Ukrainian casualties (civilians mostly, given Russia's tactics so far) and / or minimize further Russian losses.

Leaking these documents not only risked the lives of thousands of an American ally, Ukraine, these leaks potentially SAVED thousands of ENEMY lives -- lives of enemy soldiers and mercenaries who are committing documented war crimes against civilians on a daily basis. Allowing material at this level to be leaked then subjected to additional digital manipulation to alter content also lent support to a core Russian strategy of spreading disinformation and sowing strife within America and between America and its allies. In short, the intentional leakage of these documents wasn't just a document handling crime. The nature of the documents, their real-time nature and the manner in which they were leaked constitute treason against the United States, by an ACTIVE DUTY member of the military.

Besides these traditional justifications for execution, the case of Jack Teixeira involves uniquely modern trends and threats which must be combatted. The chat room on Discord used to leak the information was a digital home to roughly two dozen users, all male and many in their teens. Members said they bonded in the chat room over their mutual love of guns, military gear and love of God. Members describe Teixeira as a devout Catholic, while also reporting he shared video clips of himself yelling racist / anti-Semitic drivel and shooting a gun simultaneously. None of that triggered any cognitive dissonance among the members because some stated they viewed Teixeira as a father figure, or at least as someone to emulate.

Candidly, there is virtually nothing in that description of his profile that constitutes any surprise given his eventual crimes. You don't need ChatGPT to map that profile into those crimes or map those crimes backwards to a person with that profile. Teixeira had spent nearly four years in the Massachusetts Air National Guard and only achieved the first perfunctory promotion in rank. He was doing low-level tech support work identical to that in any run-of-the-mill company. He is said to have expressed disillusionment about the direction of America. Was it the direction of America he was disillusioned about, or the direction of his life? Other members of the chat room stated that few paid attention to the first documents he shared (awkward avoidance given the material and obvious crime he was committing or pure yawning disinterest?). After the initial indifference, he posted MORE documents because he wasn't getting the attention he wanted from his fellow gun-lovin', God-fearin',racist / anti-Semitic fanboys. THAT'S the mentality we are dealing with, not only with Teixeira but the TENS OF THOUSANDS like him across the country.


National Security Punishments

As of April 14, the government has only charged Teixeira with retention and transmission of national defense information and willful retention of classified documents. Merrick Garland and Joe Biden must both explain to the public why Teixeira is not charged with treason and why the death penalty should not be pursued. At a minimum, Teixeira should serve the rest of his life in prison, a sentence also possible for a treason conviction.

Why is it so important for Teixeira to be subjected to the death penalty or at least life in prison? There are HUNDREDS OF THOUSANDS of people, similarly disenchanted with their economic plight and similarly addicted to social media for a false feeling of belonging and respect who are actually being indoctrinated into hate and violence. TENS OF THOUSANDS of such people already staged an insurrection attempting to interfere with the peaceful transition of power to a new President. This case is likely the most blatant case of immediate, actionable military intelligence being compromised during wartime that America has seen in a century. It affects the lives of millions of people and billions of American expenditures for its ally. And it was committed by an ACTIVE DUTY member of the armed services trying to score style points with his friends in a chat room. What message will be sent to those HUNDREDS OF THOUSANDS like him if this crime isn't met with the ultimate penalty?

Carry on.

The military must cast a much wider net in its investigation. If Teixeira was able to photograph the documents because he had access to shared file servers to print a local copy to photograph it, then the personnel in the Massachusetts Air National Guard and the larger branches involved with the design and operation of those desktop systems require discipline including termination with zero benefits. If Teixeira was able to photograph the documents because they were left exposed after classified meetings or left exposed in private offices, the attendees of those meetings need to be identified and also subjected to discipline under UCMJ or civilian law as appropriate, including termination with zero benefits.

The other members of the Discord chat room also merit criminal investigation. At least one member (still under age 18) saw the documents posted within the room but didn't notify anyone. That's not a crime per se but it isn't clear if any of the chat room members COPIED the documents and saved them anywhere else. That would be a crime. Technically, it might be argued that the act of viewing the document from the server may have temporarily copied it FROM the server to a local machine, constituting a crime. Also, authorities have found some of the documents were digitally altered to obscure information or change the information. Each altered document is confirmation that document existed at one point in time in at least one other location where the editing was performed. If Discord logs identify where the altered document originated, other parties should be subject to criminal prosecution as well.

As described in the next section, the government needs to correct glaring flaws in current tools and procedures regarding classified information. This type of crime should not have been possible to this extent without being detected earlier in the process. But until the government can improve technology, those entrusted with clearances and those who merely encounter secrets but know better must be held accountable in proportion to the lives lost, lives risked or national goals jeopardized by their crimes. A mere fifteen year sentence is not proportional to this crime.


National Security Malpractice

The government may have identified the origin of the leak and arrested the perpetrator but much more explanation is required of the policies and capabilities of both the Department of Defense and the Justice Department. Concerns abound, ranging from the mundane to the insane.

Teixeira was in the military but was not flying planes, selecting targets, or managing shipments of munitions between bases. His job was providing desktop and local network support, just like the people working in every Fortune 500 company that has 50,000 laptops that get patches every month and have strange software bugs or hardware failures that someone from IT has to come up and help with. THAT was his role.

In any competent IT organization, when employee Jane Doe calls for support and Joe Blow is assigned as the technician to fix their problem, Joe Blow isn't given "god" rights on his normal joeblow login that allows him to alter anyone else's machine to install new applications, drivers, patches, etc. He is given a second PARALLEL userid (something like joeblowelevated) which has those elevated rights to any local machine. That joeblowelevated userid does NOT have read/write access to any arbitrary shared drives that an employee might have. Any action performed by Joe Blow while logged in as joeblowelevated is recorded with extra detail and those logs are forwarded to a centralized server for automated analysis for signs of abuse / data theft / etc. If logs appear showing joeblowelevated accessed the computer for userid janedoe when no support ticket was opened by that user, that can trigger alerts about potential security breaches.

If Corporate America has figured out how to administer modern operating systems on tens of thousands of computers for users scattered across an entire country, why hasn't the Defense Department adopted these best practices? Many of these security controls are included with modern operating systems. Others require additional add-ons per computer. The Pentagon budget is roughly $842 billion dollars per year. It seems obvious that an $842 billion dollar budget can fit the cost of putting extra security software costing maybe $100 per seat per year on the computers of 950,000 civilian employees and 1.3 million active duty personnel. That's a mere $225 million dollars. That's 0.0267 percent of the yearly defense budget.

The Defense Department also needs to look through its $842 billion dollars of annual spend and explain to Congress and the American public why it has not designed a better document classification and access system for all of the supposedly top secret documents involved in running a modern national security state. Given the number of cases of document mishandling by high and low ranking personnel alike (generals, generals' girlfriends in the press, vice presidents, active presidents, former presidents…), it seems more effort has been devoted to devising new categories of security to protect turf between agencies and impress women at after-work cocktail parties than efforts to actually protect information.

Some examples:

If the Defense Department is properly configuring computer access rights for employees and helpdesk technicians, a support technician would never be able to see top secret documents on a general's machine without a central system recording the date, time and technician userid and EVERY ACTION taken by that technician on that general's computer (every application launched, every folder opened, every document opened…). As mentioned before, that log data can be automatically analyed and merged with other data to more surgically identify potential abuse / theft in real time, even before humans know to suspect a breach.

Virtually every outpost in Corporate America has adopted computer administration practices that a) encrypt any local hard drive or solid-state drive, b) disable USB drivers to prevent external USB drives from being plugged in as a path for virus infections AND to block local files from being copied off the machine to a removable drive to steal documents, c) mirror any documents created by the user on their local drive to a network-accessible backup folder. All of these practices ensure that if the laptop is ever stolen, no thief can read the hard drive / SSD, even if they mount it in another machine they already control. Many companies install additional drivers that consult a public internet registry service at startup and will "brick" the machine if the owner flagged it as stolen. With these practices in place, a laptop computer is portable but can be scrambled and cut off from the mother ship with zero risk of data loss. (It's not a fun world for the user who can't use their USB drive but work isn't meant to be fun, is it?) Has the Defense Department adopted these capabilities universally?

Of course, none of these practices help in cases where the leaker can take a PICTURE of a screen or printed document with top secret information and exit the secure facility with a camera. The first obvious solution is to confiscate any smartphone or camera device from personnel entering facilities where screens or printed materials can expose secure data. Again, in virtually any Corporate America setting, support agents working at banks, internet providers or other firms with sensitive data on MILLIONS of customers have rules that require them to leave smartphones in a locker before entering the call center floor and prevent them from having any paper at their desk during a shift to write sensitive customer data down. Of course, the effectiveness of this approach was compromised during the COVID-19 pandemic when many workers began working from home and again their work environment became uncontrolled by their employer.

The military is in a different position vis a vis its personnel. For example, the military could design its own geofencing smartphone app and require its installation on employee devices. The app would monitor the phone's GPS location and disable cameras and audio recording capabilities when the location is within a geo-fence boundary of any DoD location. All non-military personnel would still be required to lock up smartphones before entering such facilities. Not perfect, but likely better than the current state.

The camera problem really points out the biggest problem the United States has not addressed as it spends more and more money attempting to build the ultimate national security state. Documents WILL always leak out, either inadvertently or intentionally. Once leaked, the government MUST be faster at identifying the document's history (who / what / where / when) to narrow down who might have leaked it. An estimate from 2019 indicates roughly 2.9 million Americans hold some level of security clearance. A quick search shows the government itself considers there to be five levels of security:

  • Controlled unclassified
  • Public trust position
  • Confidential
  • Secret
  • Top Secret
  • Compartmentalized

Using the earth as a metaphor for all possible areas of sensitive information, this classification scheme implies that current practices are more focused on the "altitude" of a person (how high up the scheme they are) rather than the "latitude and longitude" of their need to know. Information within the Compartmentalized tier is obviously more segmented but at lower levels, access seems to be quite wide. Conceptually, if you are trusted to view information at two thousand feet, you are trusted to look at any point on the planet at that two thousand foot level. Assuming for a moment that current government policies which seem to require ever larger volumes of information to be hidden from the public are legitimate, it seems clear current classification schemes cannot serve the defined need. They lack the specificity required to properly compartmentalize information and thus contribute to oversharing of information.

If we're going to continue attempting to operate a national security state, a more effective means of tagging information and compartmentalizing access to such data is required. The US Post Office introduced ZIP codes in 1963 to speed the sorting required for a piece of mail by boiling down all geography within the US to numeric codes representing a specific geographic block served by a specific post office. When sending a letter from Los Angeles to New York City, no one anywhere in the country within the postal system needs to process the fact the letter is addressed to Mayor Adams or even City Park Hall. They only need to know the letter goes to New York City within New York State which can be discerned from looking at the ZIP code 10007 and putting the letter in a pile that will move towards that post office. Only the last two people touching the letter (the sorter in the post office and the carrier) need to look at the full address.

In essence, government systems need to implement a new process based on something I'll call a "ZIPIT" code. Like a ZIP code, a ZIPIT code would be a relatively short character string that would be automatically created any time a confidential document is created electronically or printed that would encode information about the originating agency, department and possibly author. How much information could be embedded in a ZIPIT code? If the code was kept to seven alphanumerics (digits and upper case), that would be 37^7 or 94,931,877,133 combinations.

Theoretically, this concept would allow over 94 billion unique areas of information to be identified for subsequent use in identifying the source of a document and information about the organization and author that created it, allowing searches to rapidly trace the document's trail if leaked. If a ZIPIT code was also embedded with a document and used to trigger an event when read electronically, such read confirmations could be collected and searched to instantly diagram a document's sharing history and identify parties that viewed the document. The tasks of synthesizing such codes at document creation and generating "read tags" as documents are passed and opened is child's play for modern big data systems. Amazon processes more details on your search behavior on their portal than would be generated by this type of system.

Why is this type of system required? In this case, the original story triggered a race between the Justice Department and Department of Defense on one hand and the press -- the Washington Post, in particular -- to identify the leaker. The Washington Post actually beat the FBI to Teixeira's literal doorstep because they were able to associate a COUNTERTOP and a floor tile pattern underneath one of the document photos with the kitchen in Teixeira's home faster than the FBI and DoD were able to use the pictures of the documents with subjects, dates and data to original documents, points of origin and points where those documents might have been printed to then identify Otis AFB and Teixeira.


WTH

Thursday, April 06, 2023

A Dark Day for Democracy

These stories all broke in America... IN ONE DAY.

On April 6, 2023, the Tennessee House voted to expel three State representatives from the House. Their offense? Participating in a protest on the floor of the Tennessee house with students from across Tennessee urging gun regulations after the murder of six people at a Nashville school. The vote for Representative Gloria Johnson fell short by one vote, 65-30. Justin Jones was expelled on a 72-25 vote. Justin Pearson was expelled on a 69-26 vote. All three were Democrats. Jones and Johnson were African Americans. Coincidence?


Janet Protasiewicz defeated Dan Kelly in the race for a Wisconsin Supreme Court seat by ELEVEN PERCENT, triggering one of the most bitter, vindictive, foaming-at-the-mouth rabid post election speeches ever filmed, in which Kelly said

Now this didn’t turn out the way that we were looking for. And I think there are a couple of reasons for it, and I think we need to address them head on. And it brings me no joy to say this; I wish that in a circumstance like this I would be able to concede to a worthy opponent. But I do not have a worthy opponent to which I can concede. This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt. Now I say this not because we did not prevail. I do not say this because of the rancid slanders that were launched against me — although that was bad enough.

But that is not my concern. My concern is the damage done to the institution of the courts. My opponent is a serial liar. She’s disregarded judicial ethics. She’s demeaned the judiciary with her behavior. And this is the future that we have to look forward to in Wisconsin. I have been committed to the rule of law my entire career. I understand this to be the most fundamental basic promise of civilization. And in its heart, it lives in the judiciary, and if not there, nowhere at all. We’ve had this laid out plainly for us. We could have the rule of law. Or the rule of Janet. The people of Wisconsin have chosen the rule of Janet’s.

Now I respect that decision because it is theirs to make. So I’ve gone around this great state of ours. Everywhere I’ve gone, I’ve reminded the people that all the power to create and maintain governments in this state belongs to them. And all the power to decide who sits in the seats created by their Constitution belongs to them. And I’ve promised them that I would respect their decision in this race, regardless of what it is. Because that is what a servant does.

So I respect the decision that the people of Wisconsin have made. But I think this does not end well. As I look forward I hope, I hope it does end well. This has been a beautiful, beautiful life here in Wisconsin with all of you. And I wish Wisconsin the best of luck, because I think it’s going to need it.

As Molly Ivins once said about a similar oration years ago, I'm sure it sounded better in the original German.


Dan Knodl won a Wisconsin Senate seat in the same April 4 state election, restoring a Republican supermajority in the Wisconsin Senate, giving the Senate the ability to impeach any holder of statewide office… including the just-elected Supreme Court justice Janet Protasiewicz. Knodl was already on record prior to the election for being willing to impeach Protasiewicz in her current role on the Milwaukee County District Court, accusing her of leniency in sentencing contributing to skyrocketing crime in Milwaukee. Wisconsin's constitution does not define the actions that can / should trigger impeachment.


As of April 5, 2023, Missouri Republicans have fast-tracked review of a proposed Missouri Constitutional amendment that would require every county in the state to maintain an elected Sheriff Office and grant each Sheriff complete oversight of ALL law enforcement actions within the county -- both federal and state. This is part of Missouri Republicans' attempt to transform "Mizzour-ah" from the Show-Me State to the Me-Too State for bad government. This amendment reflects a perverse "constitutional sheriff" movement which turns each county sheriff into the final arbiter of all constitutionality at all levels of government. In this bizarro world, each sheriff has the right / duty to ignore any federal or state law they feel -- in their considered, learned opinion -- is unconstitutional. Of course, this concept is COMPLETELY unconstitutional as a violation of the Supremacy Clause in the US Constitution.

You'd think Missouri Republicans would be familiar with that concept because it was just cited by a federal judge when tossing a prior Missouri law, the Second Amendment Preservation Act passed in 2021. That law attempted to block any state law enforcement officer from aiding federal law enforcement from enforcing federal weapons laws conflicting with Missouri law. This new amendment was submitted by freshman Republican Senator Jill Carter immediately after that law was tossed. Of course, this new amendment is no less a violation of the Supremacy Clause than the prior law but Republicans seem to have limited familiarity with constitutions, laws, lawyerin' and such. They apparently think if similar poppycock is passed as a state constitutional amendment, THAT will make it constitutional.


ProPublica published a story on April 6, 2023 regarding nearly twenty years of cruises, resort vacations and private jet travel provided to Clarence Thomas by billionaire and Republican donor Harlan Crow, none of which were ever disclosed by Clarence Thomas in any ethics filings for gifts. The cost of just ONE of the trips identified by ProPublica would have exceeded $500,000. Thomas has refused to comment on the gifts and their implications but Crow did release a statement, readable at https://www.documentcloud.org/documents/23741877-harlan-crow-statement.

The hospitality we have extended to the Thomas’s over the years is no different from the hospitality we have extended to our many other dear friends. We have been most fortunate to have a great life of many friends and financial success, and we have always placed a priority on spending time with our family and friends. Justice Thomas and Ginni never asked for any of this hospitality.

Of course, Crow completely misses the point. The point is not that this is usual for a billionaire and that he enjoys similar relationships with other powerful people. The point is that such fringe benefits are going undisclosed by a Supreme Court Justice whose track record of decisions are 100% aligned with the interests of Crow and fellow billionaires.


Republicans in North Carolina just regained a supermajority in their State House after a Democratic Representative announced her switch to the Republican Party. Representative Tricia Cotham won re-election in November 2022 with a nearly twenty percent margin and mentioned nothing about her concerns of policies or trends in the Democratic Party during the campaign and accepted the endorsement of Emily's List during the campaign. North Carolina has no mechanism within state law for recall of elected officials so Cotham will be able to serve the two-year term without any means for the voters to claw back her seat and repeat the election.


What are the takeaways from these stories?

Gerrymandering is the single biggest threat to representative democracy in America. It should be a giant neon danger sign when statewide offices can be won by PartyA yet district-level offices are won with 66-75 percent margins by PartyB. In a representative democracy, voters are supposed to pick their elected officials. In the world we live in, elected officials are picking their voters, creating defenses to protect themselves from voters, pulling up the drawbridges and proceeding to do whatever they want with zero accountability.

Election wins aren't enough. Gerrymandering allows an unrepresentative supermajority to protect and widen that unrepresentative supermajority by abusing procedures to kill legislative proposals, interfere with Executive branch functions and appointments and expel elected members of the opposition at will. The vindictive behavior described in these examples regarding expelling elected officials and impeaching judges for simply winning an election is not a one-off problem in the Republican Party, it is a DEFINING CHARACTERISTIC across the country. It's not enough for Democrats to win an election. In this climate, any win is triggering IMMEDIATE legal harassment to cripple the winner or toss them from office. It's not enough for Republicans to win either. They expect to win by ever wider margins and any loss to a Democratic candidate creates ever higher levels of paranoia, even when Republicans have won a majority in rigged districts.

We're all living in John Robert's world. The tenure of John Roberts as Chief Justice of the US Supreme Court has been a complete legal and ethical charade from his confirmation. Roberts has portrayed himself as a classic pro-business Republican with some leanings towards most of the conservative social positions while avoiding some of the more extreme conservative social positions. In reality, under his tenure, the Supreme Court abandoned federal efforts to enforce Civil Rights and Voting Rights protections won in the 1960s. After doing so, southern states immediately began adopting a variety of grossly discriminatory practices for managing voter rolls and further distorting district boundaries to eliminate toss-up seats at the state and federal level and widen Republican margins. In Robert's tenure, the court has become a ultra pro-life, ultra-conservative Catholic, Federalist society legal monoculture that has consistently cherry picked language from two centuries of legal decisions to overturn old and new Supreme Court precedents. Originalist rulings and interpretations have created a climate where words within the law only have whatever meaning a judge wants them to have, with no consistency across the country. Rather than equal protection under a consistently interpreted law, citizens face a "jackpot" legal system where the powerful attempt to pick their jurisdiction to shop for the outcome they want and the weak get outcomes based upon the judge randomly appointed to their case.

As if that track record wasn't horrific enough, Roberts has allowed the Supreme Court to to be tainted with a series of gross ethical failures which further cripple the moral authority required by the Court to perform its duties. Ongoing social meetings by a Justice (Alito, maybe others) with a lobbyist for organizations with abortion cases before the court and a leak of a pending decision to a favored lobbyist (Alito). Justices (Alito again?) and staff leaking draft opinions to the public in an attempt to bully other Justices into a preferred outcome and an internal follow-up investigation which magically found and disclosed NOTHING about the leak. A Justice (Thomas) participating in cases associated with insurrection at the US Capital without disclosing his wife was actively working with insurrectionist groups in MUTLIPLE STATES much less recusing himself from the case. And of course, the latest example of Clarence Thomas accepting easily millions in gifts over twenty years without disclosure.


WTH

Tuesday, April 04, 2023

Indictment #1 - Analysis and Comments

Donald Trump managed to continue adding historical firsts -- of the worst kind -- to his presidential legacy. On April 4, 2023, Trump appeared in a Manhattan courtroom for arraignment on thirty four criminal charges, all tied to business records falsification to avoid disclosure of an affair in the heat of the 2016 election. The indictment is straightforward but for both those in favor of the charges and those opposed, its simplicity leaves many questions unanswered. The actual PDF for the indictment can be viewed here:

https://www.scribd.com/document/636100415/Donald-J-Trump-Indictment#download&from_embed

The charges involve three tasks (submission of an invoice, general ledger entries in business accounting systems and checks signed by Donald Trump) repeated eleven times between February and December of 2017. All of the invoices were submitted by Michael Cohen. The checks were all written against an account associated with the Donald J Trump Revocable Trust or Donald J Trump, depending upon the month.

  • (1-4) February 14, 2017 - an invoice, two General Ledge entries, a check from DJTRT,
  • (5-7) March 16, 2017 - an invoice, a General Ledger entry, a check from DJTRT,
  • (8-10) April 13 thru June 19, 2017 -- an invoice, a General Ledger entry, a check from DJT
  • (11-13) May 22-23, 2017 -- an invoice, a general ledger entry, a check from DJT
  • (14-16) June 16-19 -- an invoice, a general ledger entry, a check from DJT
  • (17-19) July 11 -- an invoice, a general ledger entry, a check from DJT
  • (20-22) August 1 -- an invoice, a general ledger entry, a check from DJT
  • (23-25) September 11-12 -- an invoice, a general ledger entry, a check from DJT
  • (26-28) October 18 -- an invoice, a general ledger entry, a check from DJT
  • (29-31) November 20-21 -- an invoice, a general ledger entry, a check from DJT
  • (32-34) December 1 -- an invoice, a general ledger entry, a check from DJT

All thirty four counts are for violations of the same section of the New York State Penal code:

https://www.nysenate.gov/legislation/laws/PEN/175.10

§ 175.10 Falsifying business records in the first degree.

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Falsifying business records in the first degree is a class E felony.

At his press conference, Bragg was asked what prompted his office to pursue the indictment when his predecessor had not. Bragg was also asked to name the secondary crimes that were abetted by the crimes related to falsifying records. Bragg responded by saying NYS law does not require the other secondary crimes that escalate from misdemeanor to felony to be named per se in an indictment but that his prior comments referenced crimes such as violation of campaign contribution limits (presumably under federal and NYS law) and conspiracy. In response to the question of why now when an indictment was not pursued by his predecessor, Bragg stated that new information not previously in the Manhattan DA office's possession became available that was pertinent to his decision to indict.

These comments seem to confirm that the decision to pursue an indictment was driven by the fact that any business accounting manipulation will inevitably alter federal and state tax calculations. They also seem to confirm that accounting information collected by NYS Attorney General Latitia James may have supplied additional details on other accounting manipulations tied to Karen McDougal and the 2015 general "kill and capture" agreement reached between Trump and American Media Incorporated which set the pattern for the Stormy Daniels iteration of the scheme. Those AMI related interactions may have triggered a recall of David Peck who may have divulged additional conversations between AMI, Cohen and Trump explicitly confirming the catch and kill arrangements were specifically initiated to assist the Trump campaign. Again, a kill and capture agreement itself is legal but if incurred for the benefit of a political campaign, it is a campaign expense and must be reflected on campaign books. Omitting it knowing it benefits the campaign is a campaign finance violation. Omitting an expense that is $130,000 is far above the individual campaign contribution limit ($3300 to an individual candidate or $41,300 to a party) which is also a violation of campaign finance laws.

The Bragg press conference and comments shared by various officials and ex-prosecutors in the days prior to the release of the indictment both emphasized another point. The Manhattan DA routinely prosecutes cases of business records falsification, for amounts significantly smaller than $130,000 (or the $420,000 eventually involved with Michael Cohen's reimbursement via grossed up bonuses).

https://www.justsecurity.org/85605/survey-of-past-new-york-felony-prosecutions-for-falsifying-business-records/

The Trump case is NOT an example of a partisan DA pursuing a prominent politician to a degree far beyond that applied for other citizens. HUNDREDS of cases have been prosecuted just in the last two years. Except for the name on the docket, there's actually little that is unique about the Trump case.

This catch and kill case raises another question for both Trump supporters and prosecution backers. The federal government PROSECUTED Michael Cohen on fraud charges on these exact same facts and explicitly identified Trump as an unindicted actor in the crimes. Of course, the Justice Department under William Barr didn't pursue prosecution at the time because, well… Barr wasn't going to charge Trump but apparently no other US Attorney General would likely indict a sitting President, citing not Constitutional language or centuries of legal precedent but a fifty year old internal Justice Department policy document crafted in a different Republican administration in 1973. So after Trump left office, why didn't the Justice Department under Merrick Garland immediately resurrect the case in its Southern District of New York region and charge ex-President Trump?

The answer lies in the intersection of justice and politics in a world with limited resources and attention spans. No prosecutor's office at any federal, state or local jurisdiction has enough financial resources and attorneys to prosecute every crime in its jurisdiction. A single action can trigger violations of multiple laws at both federal and state levels simultaneously, some violations more obvious (to defendants and potential jurors alike) than others. Every decision to prosecute involves an analysis of the POSSIBLE charges, the charges with the clearest EVIDENCE, the charges EASIEST TO EXPLAIN to a jury (both a grand jury to obtain an indictment and a petit jury to evaluate guilt or innocence) and the charges that would result in the MOST APPROPRIATE SENTENCE upon conviction.

Maybe Merrick Garland will eventually write a book explaining his thought process but, at the moment, outsiders can only guess the rationale applied to this case. The easy answer might be that Garland was (and may still be) too timid and was hoping the department could just focus on new cases and create a better environment going forward, failing to recognize the corrosion still being injected into the Justice Department from four years of inertia. Alternatively, it could be that Garland began his tenure recognizing case work stemming from the January 6 insurrection would eventually hit his desk. That may have triggered a great deal of internal investigations unseen by the public as the House began its investigations in parallel. As those efforts continued, his team may have concluded the January 6 insurrection and possibly the Georgia case would DEFINITELY swamp his department's supply of resources and political capital and that the catch and kill case could be more effectively delegated to state level prosecution. Such a decision to delegate shouldn't be interpreted as a case have NO merits, only a reflection of decisions about optimizing resources on a nearly daily basis.

Not stated by Bragg or reflected in any commentary about the indictment contents and the process are two final points. First, an indictment itself is not intended or required to serve as a public roadmap for the prosecution to explain to the public or the defendant HOW it's case will be sequenced and presented in court. It's not a playbook. It is only a dry laundry list itemizing the actor, approximate date and statute of each count. The indictment released on April 4, 2023 is NOT a reflection of the entire pool of evidence Bragg has amassed for this collection of charges. It may not even reflect other charges still lurking that required more investigation.

Second, language and semantics are important. It is not accurate to say prior Manhattan DA Cyrus Vance "decided" that an indictment related to this set of facts would not (ever) be attempted. He simply vacated the office without pursuing a grand jury indictment during his tenure. The investigation itself was still underway as Bragg took over. Bragg continued the work, alienated two of his own prosecutors in the process, recalled numerous witnesses for more details and increased his confidence in the case to the point he was comfortable submitting it to a grand jury. This is why prosecutors should normally NOT SAY A WORD amid investigations or at their conclusion when no charges are pursued. A prosecutor who decides NOT to pursue charges at a specific point in time is NOT relinquishing the right to file charges at a later point in time. There is no "double jeopardy" law at the state or federal level for being INVESTIGATED for crimes. The only thing that ends that capability is the statute of limitations for the crimes alleged.


WTH

Monday, April 03, 2023

McDonald's and Mental Health

McDonald's made news in the last week of March 2023 when it sent an email to workers at multiple corporate offices in America instructing them to work from home April 3 through April 5 as it executed a plan to distribute layoff notifications as part of a major reorganization of the company. News of a major corporation performing layoffs is not "news" per se in the current economic climate, though it was a surprise to McDonald's workers since the firm is actually doing better than most restaurants as higher prices drive diners down the proverbial food ladder at the expense of more upscale casual restaurants.

The McDonald's layoff is newsworthy not due to the timing or the numbers but due to the stay at home aspect of the plan. For decades, employees working in jobs which create unique physical or network security risks have grown accustomed to layoff processes more akin to scenes from Goodfellas. It has been rare for such employees to be let go (whether due to layoffs or just cause) with advanced notice. Such workers are normally invited to a conference room with their supervisor and an HR representative. When that meeting begins, people in desktop support confiscate their laptop from their office and people in IT disable their network logins and VPN access. When the meeting ends, the now-ex-employee has nothing to do but return to their cubicle or office, retrieve their personal effects under the watchful eye of HR and walk out of the building.

This process ensures the employee cannot get back into critical systems AFTER being notified of termination to destroy data, steal data, harm networks or initiate actions that can damage physical infrastructure. This process seems a bit cold and heartless and it is in a very real sense. The only thing worse than seeing a colleague get laid off and "perp walked" out of the building with their box of stuff is BEING the employee getting perp walked out in front of your colleagues like you did something wrong when in many cases, MANAGEMENT failed for years to do its job in adjusting to market forces to pump the breaks on hiring to avoid needing a mass layoff in the first place. Brutal as it is, those working such sensitive positions understand why those positions require those types of measures. It is required to protect the integrity of data and services for millions of customers and the public at large.

This process was altered significantly as a consequence of work from home arrangements whereby employees frequently or exclusively worked from home and might not be in a corporate office for that fateful final meeting with HR and their boss to get their layoff packet, COBRA forms, unemployment forms, etc. Many companies took to "remote layoffs" using web conferencing, much like the movie Up In the Air where Ryan Bingham (George Clooney) is a layoff expert racking up frequent flier miles traveling across the country for one on one layoff discussions only to be grounded back at corporate after a college hire suggests using video conferencing to make the process more, um… efficient. Only in the last six months have the socially dysfunctional, conflict-averse introverts running firms like Twitter, Facebook and Google perfected the remote layoff to a completely non-visual, non-verbal bloodless process whereby people learn they lost their job via an email. Or worse, people find they lose their job by having their email and VPN access terminated and waiting for paperwork to be mailed to their home.

The reporting on McDonald's plan doesn't reflect the number of employees that will be affected, the severance packages that will be offered or the exact means of communication. However, the directive given to ALL employees at most (all?) of the corporate locations is to work from home and do NOT come into the office… For three days. Basically, employees have been told to stay home and wait for an email or call.

I'm sure technology has advanced mightily in the innovative, highly competitive cutthroat world of fast food but why would McDonalds conclude that EVERY ONE of the employees being laid off merits the "top security / business critical employee" treatment? Do they all have login access to McDonald's data center servers? Do they all have access to company financials? Have they all seen the branding strategy for the return of McRib?

Clearly not.

So why is McDonald's executing this layoff with such a seemingly inappropriate, draconian vibe? McDonald's reverted to partial work from home in July of 2021, allowing two days of remote work per week. Are most employees conforming to that rule or is it still an "aspirational goal" for HR? Maybe the rollout plan was chosen because enough employees are still remote on any given day that it was easier to devise a single written communication plan assuming a single communication medium and they opted for the lowest common denominator knowing some would inevitably get the news remotely. HR leaders and lawyers both are loathe to have mass layoff information disseminated by varied processes that can convey inconsistent information leading to charges of discrimination.

Does this modus operandi say something else about Corporate America? Have the FANGs of the world and the unique leadership styles of their executives succeeded at lowering expectations for these types of human interactions for all companies in all industries?

Does this modus operandi say something about attitudes regarding the workplace and work itself on the part of workers? Not just "labor" at the bottom of the ladder -- everyone works for someone and these dynamics don't skip levels. Have workers internalized the lessons of watching generations of their parents and grandparents get unceremoniously jettisoned from a job and assumed as managers that everyone already expects this? Is that leading managers to just shrug and say why bother agonizing over smoothing the message? Why suffer through dozens of awkward one-on-one conversations? I'm still here, sucks to be you, see ya on LinkedIn?

Or does it say something about the collective mental health of America today and particularly the risks associated with the mental health of an America awash with guns? McDonald's plan also applied to its overseas corporate employees so the logical leap cannot be made that the order only involved the US, thus reflecting some unique American market fear. On the other hand, the desire of HR and legal types for consistent messaging may have driven the inclusion of overseas workers in the work from home directive. McDonald's employees about 150,000 workers in its corporate offices (not counting corporate owned restaurants and franchise owned restaurants), the vast majority in America. Even a five percent reduction would be 7500 layoffs. No employer would probably ever publicly confirm they actively considered the threat of workplace violence when executing these plans but it seems HIGHLY unlikely such concerns would NOT be considered. Is this policy indirectly divulging the macabre calculus employers are going through for such events to determine how many could be laid off before hitting some threshold where a violent incident becomes too likely?

I suspect there is some truth in all of these dynamics. I also suspect that younger workers may not consciously think through these events and formally describe the dynamics involved but they are certainly seeing them and factoring them into their own decisions, both in the little picture each day when deciding how much mental energy to devote to the man and in the big picture as they decide what types of jobs to take and how long to stick around before moving on. It won't get any easier to boost productivity when the overarching vibe in the work place is so fearful, resentful and me-versus-we centric.


WTH

Palm Monday in New York

In the afternoon of April 3, 2023, Donald Trump exited his private plane at LaGuardia airport, climbed in a Secret Service motorcade and trekked from Queens to his apartment in midtown Manhattan in preparation for his first big day in court on April 4. Purely for future scientific studies in clinical malignant narcissism, it would have been fascinating to get a transcript of the thoughts going through his mind on that journey into Manhattan.

I can imagine him peering out the tinted glass of his government-provided SUV, watching for the flocks of avid (rabid?) adoring supporters lining the highways and streets, holding STOP THE STEAL or TRUMP 2024 signs. In light of the season and given his pronounced Christian character, I can imagine him thinking, "Hey, this is like my own Palm Monday, it's the biggest Palm day of the week anyone has ever had in history. No one has had a Palm day as spectacular as mine. I own this town, the people love me."

Donald, you might want to roll the window down and get a better look at the people lining the route. They're not all laying palm fronds in the street to blanket your path. It's already evident you have more than one Judas amidst your disciples / employees. And you're not just facing one group of critics hoping to turn you over to Pontius Pilate for punishment, you're facing four different modern day Sanhedrins, all pursuing DISTINCT offenses.

If I were you, I'd opt for a courthouse entrance on the front steps in broad daylight. You're about to spend more time than you could have previously thought possible indoors listening to very smart people -- people way smarter than you or anyone that would voluntarily choose to act in your orbit -- work to convince twelve very important people whether you should see even less daylight in the coming years. Enjoy the sunshine while you can.


WTH