Im-Politic: Mueller, Barr, and Beyond

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2016 election, Access Hollywood tape, Adam Schiff, collusion, Constitution, executive privilege, high crimes and misdemeanors, Im-Politic, impeachment, James Comey, Jerrold Nadler, Justice Department, Mueller Report, Nancy Pelosi, obstruction of justice, removal, Robert Mueller, Roger Stone, Russia, Russia-Gate, Special Counsel, Trump, Trump-Russia, William P. Barr

Yesterday, Attorney General William P. Barr released his summary of Special Counsel Robert Mueller’s investigation of the Trump presidential campaign’s “links and/or coordination” with the Russian government, and of related obstruction of justice charges. The big takeaways: In the Mueller report’s own words, the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”; and (in the Attorney General’s words), Mueller and his team “ultimately decided not to make a traditional prosecutorial judgment” regarding a number of Presidential actions that “potentially” raised obstruction of justice concerns.

A more resounding defeat for the legions of Democrats, Republican and conservative Never-Trump-ers, and Trump haters in the Mainstream Media can scarcely be imagined for two major reasons. First, according to Barr, not only did the Special Counsel investigation fail to find any Trump campaign conspiracy or coordination with the Russian interference effort. It concluded that such actions never took place “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

Second, although Mueller and his staff (in their words) made sure to state that “while this report does not conclude that the President committed a crime [i.e., obstruction], it also does not exonerate him,” the failure to recommend such charges is stunning. After all, this hasn’t been a team of investigators that’s been exactly reluctant to hand down such indictments – including for so-called process crimes that are clearly serious in normal circumstances, but that look especially dubious now considering the failure to find any underlying crime.

Constitutionally speaking, where this leaves remaining desires in Congress and throughout the country to impeach the President is way up in the air right now. For as the impeachers – and others – have often rightly reminded us, the Constitution doesn’t define the “high crimes and misdemeanors” that can warrant impeachment (and removal from office) aside from “treason” and “bribery.” Therefore, from a Constitutional standpoint, there’s a strong case to be made that impeachment and removal can take place in the absence of a criminal offense, and that the process is above all else political (a term I’m not using pejoratively in this case).

As a result, any lawmaker deciding to proceed along these lines even after the above Mueller conclusions would be acting completely within his rights and even arguably fulfilling one of his highest duties. House Judiciary Committee Chair Jerrold Nadler (D.-New York) was right when he stated:

“The job of Congress is much broader than the job of the special counsel. The special counsel is looking and can only look for crimes. We have to protect the rule of law, we have to look for abuses of power, we have to look for obstructions of justice, we have to look for corruption in the exercise of power which may not be crimes.”

Indeed, that’s why Congress has been granted broad oversight authority over Executive Branch actions and policies. It’s a central feature of the checks and balances principle at the heart of the country’s Constitutional government.

Similarly, however, because impeachment is an ultimately political process, House Democrats (whose control of the chamber empowers them to initiate such proceedings) will have to make ultimately political decisions whether to go ahead, how far to take these matters, and the extent to which they’re willing to permit impeachment to dominate their agenda and the public perceptions they create. As I see it, those Democrats chomping at the bit to head down this road remain far from the starting gate, especially given House Speaker Nancy Pelosi’s judgment well before this weekend’s events that Mr. Trump “is just not worth” impeaching. The same conclusion applies to the determination of Rep. Adam Schiff (D-California), Chair of the House Intelligence Committee to keep examining whether the President “is somehow compromised by a foreign power.”

Yet for all the comment and analysis flooding out this afternoon, there’s still one question I think needs more attention: When exactly did the Mueller team recognize that neither the collusion nor the obstruction allegations wouldn’t pan out? More specifically, did this situation became clear to the Mueller team before last year’s U.S. midterm elections?

Here’s what I’m driving at: The entire Special Counsel exercise was launched to find answers to some of the biggest and scariest questions ever raised in American history. Like whether a successful candidate for President and/or influential members of his campaign cooperated with an unfriendly foreign power to win the White House – which raises the possibility (as per Schiff above) of a President doing that power’s bidding for fear of blackmail. And don’t forget the allegations that Mr. Trump obstructed justice in order to cover up these actions and relationships, and that Moscow has him over a barrel for a second reason – due to financial transactions that kept the President’s business empire afloat before and during his White House run.

Given these astronomical stakes, of course all Americans of good will would want to leave no stone unturned. But there inevitably comes a point at which the stones start looking like pebbles, inherently incapable of hiding much. In that vein, Mueller has indicted plenty of Russians and some Americans, but as even the Trump-loathing Vox.com notes, none of these found that “Trump advisers criminally conspired with Russian officials to impact the election.” Indeed, the last such Trump-er brought up for charges was Roger Stone (in January) – and the Stone actions that caught Mueller’s attention (between July and October, 2016) came a year after Stone officially left the Trump campaign.

In other words, it looks as if sometime in the second half of 2018, Mueller’s investigation was reaching a point of diminishing returns. Did Mueller and his staff continue their business as usual (including keeping their findings closely held) because they had strong reasons to believe that major revelations were just around the corner? That would be highly unusual, for at least according to Barr, none of them panned out.

But if the investigation was producing such modest results after so many witnesses interviewed and search warrants executed (approximately 500 each, according to Barr), subpoenas issued (more than 2,800), and communications records obtained (more than 230), shouldn’t Mueller have let the public know that sooner rather than later? Especially considering that a major vote was coming up in November? These questions deserve to be asked even if Mueller was pursuing a typical prosecutorial strategy of targeting little fish first in the hope that they’d flip and disclose misdeed by progressively bigger fish.

Granted, several policy statements can be cited making clear that the determination of the Justice Department (the final authority over Special Counsel investigations) to avoid even creating the appearance of interfering with elections in any way. As this shown in this analysis, “interference” includes issuing reports shortly before elections (a standard previous Special Counsels, and former FBI Director James Comey in 2016, failed to meet). But the informal “60-Day Rule” cited here still would have enabled Mueller to issue some kind of statement (perhaps an interim report?) by Labor Day. I’d sure appreciate him explaining why this option wasn’t chosen, and if it was even considered.

Of course, it’s true that the President faces legal jeopardy on a variety of other matters, ranging in seriousness from hush money payoffs to floozies (which supposedly violated campaign finance laws) New York-area examinations of his inaugural committee’s fund-raising and of his family’s charitable foundation and of the possibility of insurance fraud to a groping accusation dating from 2007. But do these collectively, much less individually, endanger the Trump presidency? Given the President’s victory shortly after the release of remarks on the Access Hollywood tape suggesting sexual assault, that’s doubtful, especially with the Russia collusion and obstruction charges out of the way legally speaking.

Focusing on doubts concerning Barr’s decision to drop criminal obstruction charges against Trump seems no more promising. After all, authorizing Congress to seek impeachment for actions that are not crimes is essential because, as per the Nadler statement above, offenses like abusing power and creating conflicts of interest can endanger democracy and the public interest even if they violate no specific statutes. But obstruction of justice is a defined crime. Therefore, the failures of not only Barr but Mueller to indict on this score would require an obstruction-centric impeachment drive to insist that a political definition of guilt outweighs its clearcut legal counterpart. Good luck coming up with a politically riskier, more divisive course of action.

What about next steps? I strongly favor release as soon as possible of as much the actual Mueller report as consistent with the need to protect intelligence sources and methods. Watergate-era precedents seem to refute the idea that any materials violating executive privilege must be excluded. As Nadler rightly reminds, the Supreme Court’s Nixon tape case ruling specified that this Constitutional principle can’t be justified to hide wrongdoing. Nor do I have strong objections to publishing information either in the report’s body or in supporting documents that might invade the privacy or impugn the reputations of unindicted individuals (including the President). I would imagine that Barr and Congressional Democrats have enough common sense and decency to agree on which disclosures would harm the truly innocent. But the public should definitely have the right to know whether or not the President has surrounded himself with fools and knaves – and/or has acted this way himself.

Ultimately, however, I feel confident that Mr. Trump will survive these disclosures as handily as the non-aforementioned Mueller investigations. After all, a critical mass of the American people was ready to entrust Mr. Trump with the powers of the highest office in the land knowing full well he was no angel personally or in business. I strongly suspect he’ll fare equally well in 2020 now that it’s as clear as possible that, whatever his flaws, he was never the Manchurian Candidate or a Nixonian-style crook.

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Im-Politic: New Evidence that Trump-Russia is a Voter Nothing-Burger

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2016 elections, 2020 elections, collusion, foreign policy, Gallup, Im-Politic, midterm elections, polls, public opinion, Russia, Trump, Trump-Russia

I know that it’s only one poll, and that poll results can be pretty dodgy. (See “2016 U.S. Presidential Election.”) But the results of a new Gallup survey on Americans’ views towards U.S.-Russia relations seem well worth spotlighting anyway, especially given the continuing unrelenting headlines being generated by the alleged Trump-Russia scandals, by all the evidence of Russian meddling in American politics, and various investigations of the above.

Gallup asked respondents whether it’s “more important to improve relations with Russia” or “more important to take strong diplomatic and economic steps against Russia.” And by a healthy 58 percent to 36 percent margin, the “improve relations” option won out. Just as striking is that a hard line against Moscow is strongly opposed even though 75 percent of the public believes that Russia interfered in the last presidential election, and 39 percent believes that such activities “changed the outcome.”

As predictable these days, these views are sharply divided along partisan lines. But what’s less predictable is that the Democrats come across as the most intense partisans by far. To be sure, their support for a “hard” vs a “soft” line toward Russia wasn’t overwhelming – 51 percent for the former, 45 percent for the latter. But it contrasted sharply not only with the opinion of Republicans (who favored a softer line by a lopsided 74 percent to 22 percent margin). Democrats’ views also differed significantly from those of independents (who favored a softer line by 55 percent to 37 percent).

And this Gallup survey makes it tough to blame supposed public apathy or ignorance for these findings. Specifically, two-thirds of respondents told Gallup they were following news about Russia and the 2016 election “closely” and 33 percent reported following such developments “very closely.” Gallup contends that this level of attention is “slightly above” the norm for their news attentiveness results going back to 1991.

Moreover, Gallup reports that the more closely its sample members followed the story, the likelier they were to believe that Russia interfered and that its interference mattered. Indeed, ninety percent of the true newshounds accepted the meddling claims. But only 51 percent of this highly attentive group believed that the alleged Russian operations changed the outcome. And those respondents who were following such news only somewhat closely split nearly evenly on the matter (with 42 percent agreeing that the meddling affected the outcome and 40 percent disagreeing)

The same pattern was evident when it came to views on Russia relations options. Of those Americans following these stories very closely, a majority favored the harder line. But the margin was only 53 percent to 42 percent. The results for Americans following the Russia coverage only somewhat closely was the reverse – and then some. Only thirty-seven percent backed the hard line while fully 59 percent opposed it.

When combined with other Gallup findings that, through June, the constellation of Trump-Russia issues wasn’t even moving the needle in terms of Americans’ rankings of their top concerns, this new survey indicates that, unless a genuine smoking gun is uncovered, Democrats would be best advised to stress other anti-Trump messages in their campaigns this year to regain control of Congress. For if voters were strongly responsive, wouldn’t they be demanding that their leaders make Russia pay dearly for an attack on their democracy? At the same time, since voter turnout in mid-term elections is typically very low, hammering away at Russia and impeachment etc could possibly bring to the polls more “resistance” true believers and swing some close races.

The implications for the next presidential race – again, barring a smoking fun – seem clearer: In such a generally higher turnout race, voters are likely to be paying much more attention to the standard array of pocketbook and cultural issues (along with foreign policy, if crises break out) than to whatever’s left of the Trump-Russia controversy.

Im-Politic: Where’s the Collusion?

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2016 election, collusion, Donald Trump Jr., Hillary Clinton, Im-Politic, Jeff Sessions, Michael Flynn, Robert S. Mueller III, Russia, Russia-Gate, Special Counsel, Trump

Although you wouldn’t know it from the Mainstream Media coverage (see the especially egregious front page or home page of yesterday’s Washington Post), the biggest story told by the Justice Department indictments of Russians said to have meddled in American politics and the 2016 presidential election was not the additional evidence of this campaign’s existence, and how it undermines President Trump’s numerous statements denying or belittling Moscow’s efforts.

Instead, it was the evidence that, after eight months of investigation, Special Counsel Robert S. Mueller III has presented no reason to believe that anyone connected with the Donald Trump’s presidential campaign colluded with Russia to help him win the White House; that what his probe has found is a Russian meddling campaign with multiple, overlapping objectives that aimed to help several 2016 presidential hopefuls and roil American politics in many ways even (and especially?) after Election Day; and that this apparent Russian effort began long before anyone other than (possibly) Mr. Trump thought he would seek the presidency.

Interestingly, finding number two dovetailed with my post from a week ago, which spotlighted a New York Times story which made the point about Russia’s post-election aims going far beyond propping up President Trump.

Despite the media focus on the indictment’s description of the Russian campaign and its contrast with the president’s alleged indifference to it, it’s crucial to remember that this document is an indictment, not a legal conviction. The defendants still deserve the presumption of innocence when their day in court comes (assuming any will ever stand trial).

And despite the media focus on the Trump denial angle, it’s even more important to recognize how devastatingly the indictment undermines the collusion charge that’s constituted the main fear about Russia’s interference.

First, the indictment makes only one mention of any contacts of any kind between anyone involved in the Trump campaign and these alleged Russian operatives. It comes in paragraph 45:

“Defendants and their co-conspirators also used false U.S. personas to communicate with unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump. These individuals and entities at times distributed the [interference] ORGANIZATION’s materials through their own accounts via retweets, reposts, and other means. Defendants and their co-conspirators then monitored the propagation of content through such participants.”

Of course, the word “unwitting” is decisively important. It means that, the view of Special Counsel Mueller, the Trump-ers who were communicating with the Russians had no idea that they were dealing with agents of a foreign government. So by definition, they couldn’t have been colluding with Moscow.

Just as important, even though by now of course Mueller and his team know about controversial contacts between obvious agents of the Russian government and various Trump-ers that previously have ignited major controversy, the indictment never mentions them. These include the Russian U.S. ambassador’s two encounters with then-Senator Jeff Sessions, which ultimately led to Session’s recusal as Attorney General from the “Russia-Gate” investigation and Mueller’s appointment in the first place; and his conversations with former Trump administration national security adviser-designate Michael Flynn during the transition.

Nor does it mention the meeting in Trump Tower in New York City between one of Mr. Trump’s sons, his son-in-law and now senior White House aide Jared Kushner, and then-Trump campaign manager Paul Manafort, with a lawyer Donald Trump, Jr. was told was “a Russian government attorney.” Trump, Jr. was also told that this attorney (who, for what it’s worth, has denied any connections with the Kremlin) was offering what was described by the Trump, Jr. friend who instigated the eventual meeting as

“some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump…..”

Reportedly, the Special Counsel is investigating the meeting. But also, reportedly, his focus is not on the event itself but on statements that the President himself and top aides made on the subject that appear to be misleading, and that therefore could represent obstruction of justice. Obstruction of course is a serious offense, but the Trump Tower meeting itself clearly is more germane to the all-important collusion charges.

Moreover, the Special Counsel has had full access to the contents of all the wiretapped conversations between the other aforementioned prominent Trump supporters or advisers and the Russians with whom they met. (According to the CNN post linked above, the Trump Tower meeting was not wiretapped.) And apparently – again after months of investigation – nothing said at these meetings has convinced Mueller and his staff that collusion, or any indictable offense related to the Russia-Gate narrative, took place.

The second way in which the indictment undermines the collusion charge is by specifying that Mr. Trump was not the only political candidate that the Russians supposedly sought to bolster in the 2016 campaign, and that they actually began working against him immediately after the election.

According to paragraph 2, the Russian defendants:

“conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.”

In paragraph 6, the indictment states that “Defendants posted derogatory information about a number of candidates, and by early to mid-2016, Defendants’ operations include supporting the presidential campaign of then-candidate Donald J. Trump…and disparaging Hillary Clinton.” This charge restates the preceding point that supporting Mr. Trump was not the interference operation’s only goal. So does paragraph 10 (e), which refers to the Russians’ “stated goal of ‘spread[ing] distrust towards the candidates and the political system in general.”

Paragraph 33 accuses Moscow of writing “about topics germane to the United States such as U.S. foreign policy and U.S. economic issues. Specialists were also instructed to create ‘political intensity through supporting radical groups, [social media] users dissatisfied with [the] social and economic situation and oppositional social movements.”

Paragraph 43 refers to “operations primarily intended to communicate derogatory information about [Democratic nominee] Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump.” (Green Party candidate Jill Stein was also identified, in paragraph 46, as a politician backed by the operation.)

It’s clear that one of the Russians’ top priority was defeating Clinton. And the possibility still remains that Moscow believed it had so compromised Mr. Trump – e.g., through the salacious, though unverified, information in the Steele Dossier (compiled by a former British intelligence agent whose work of course was funded by the Clinton campaign) – that its ultimate aim was a Trump victory and an American president it could blackmail and manipulate on an ongoing basis.

Yet there’s another more obvious explanation for the anti-Clinton focus: She was widely viewed not only as the overwhelming favorite to win the Democratic nomination, but as the overwhelming favorite to win the fall election. Indeed, the latter belief lasted till election night itself. In other words, had one of the other Republican candidates defeated Trump, and become fully competitive with Clinton, it stands to reason that they would have become a major Russian target, too.

Further, the narrative emphasizing that the Russians viewed Mr. Trump as an ideal Manchurian Candidate completely falls apart upon considering two other indictment findings. First, the Russian interference campaign was conceived considerably before Mr. Trump declared his presidential candidacy – which on that day in 2015 was, to put it mildly, viewed as a long shot.

As stated in paragraph 3, “Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election.” More specific references to a gearing up period in 2014 can be found in paragraphs 9, 10 (d) and (e), 29, 42, 58 (a), and in numerous descriptions of indicted individuals joining the operation and of their specific activities.

Moreover, as common sense would indicate, for an operation (especially one this substantial) to be running in 2014, planning, and the original formulation of the plan, would have needed to start even earlier. That’s why in paragraph 10, the indictment tells of the umbrella organization registering as a “Russian corporate entity” with the Russian government “in or around July, 2013.” If you had any inkling then that a Trump candidacy in 2016 was remotely conceivable, patriotism should impel you to join a U.S. intelligence agency immediately.

The second finding undercutting the idea of placing a manipulable traitor in the White House is the evidence presented that, almost immediately after Election Day, the Russians began stoking and coordinating both pro- and anti-Trump activities. You can read about them in paragraph 57. And then ask yourself how “protesting the results” of the election and fostering the idea that “Trump is NOT my President” were supposed to enable the victor to aid and abet a pro-Moscow agenda, as opposed to reducing his effectiveness?

For all I know, a new collusion bombshell charge, or an actual smoking gun, could be produced tomorrow in the media. New Mueller announcements or the various Congressional probes may seal the collusion case as well – perhaps with new evidence about the activities of Sessions or Flynn, or other individuals implicated in these events in various ways. (Although again, why haven’t the contents of the wiretapped conversation sufficed?)

But as long as they don’t, especially given the intense hostility of the President’s opponents – including those inside the government – the collusion case is going to look increasingly flimsy, and increasingly political. For if there really might be a traitor in the Oval Office, there’s simply no time to lose.

In the meantime, the “Russia-Gate” theory that looks best is the one I described last week – a chaos-focused operation aimed at whipping up as much American political division and sheer anger as possible, through whoever could advance this goal at any given moment, and whoever prevailed in 2016. Perhaps it’s too cynical (and partisan) to venture that the longer the scandal charges remain in the air, the more the Democrats and Trump’s establishment Republican foes benefit. But there’s no doubt that, the longer the Russia-Gate fight drags on, the better for Moscow and all of America’s foreign adversaries.

Im-Politic: A Neglected Russia Disinformation Objective?

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2016 election, Barack Obama, Central Intelligence Agency, China, CIA, CNN, collusion, cybersecurity, Director of National Intelligence, disinformation, fake news, Im-Politic, intelligence community, James R. Clapper, John O. Brennan, Matthew Rosenberg, MSNBC, NBC, North Korea, Putin, Russia, The New York Times, Trump

Well then. Two passages in a New York Times article from this morning’s print edition were sure conversation-stoppers when it comes to the ongoing uproar about charges that President Trump’s 2016 presidential campaign colluded with Russia to boost his election odds and ensure soft treatment from his administration. That is, if you read far enough into the long piece to encounter them. In fact, they’re so important that they should have been the main angle – or at the very least, the main theme of front-page stories from now until we ever find out what’s really happened.

The passages (which make the same critical point):

First, according to Times reporter Matthew Rosenberg, by some point last September (at the latest), American intelligence officials were worried that Russia had developed an “operation to create discord inside the American government.”

Second, and more specifically, the intelligence agencies viewed one key part of this operation as feeding information suggesting that Vladimir Putin’s regime could blackmail the President (and/or the candidate) to “United States intelligence agencies and pit them against Mr. Trump.”

And here, in Rosenberg’s words, is the context:

“American intelligence agencies believe that Russia’s spy services see the deep political divisions in the United States as a fresh opportunity to inflame partisan tensions. Russian hackers are targeting American voting databases ahead of the midterm election this year, they said, and using bot armies to promote partisan causes on social media. The Russians are also particularly eager to cast doubt on the federal and congressional investigations into the Russian meddling, American intelligence officials said.

“Part of that effort, the officials said, appears to be trying to spread information that hews closely to unsubstantiated reports about Mr. Trump’s dealings in Russia, including [a] purported video [depicting him in compromising sexual situations], whose existence Mr. Trump has repeatedly dismissed.”

In plainer English, if Rosenberg has it right, the Russians have not only been trying to put Mr. Trump over a barrel and make sure that he defeated his main rival, Democrat Hillary Clinton. They have not only been trying to shake Americans’ confidence in their democratic institutions by hacking into them and unleashing a flood of fake news onto its media platforms, social and conventional. They have not only been trying to cover their tracks by using such fake news and other tactics to discredit the Congressional investigations into election meddling and related reported outrages.

They have also – separately – been trying to whip up antagonism between the President and the intelligence community. Achieving this goal of course would both tend to hamper America’s own intelligence operations and broader foreign and national security policies, as well as undermine the nation’s political system and its underlying social and cultural unity. And the tumult engulfing the capital and the nation as a whole suggests that the Russians are succeeding with this disinformation campaign, and that the intelligence agencies are playing their hoped for role.

Not that this possibility lets Mr. Trump and his aides totally, or mainly, or partly off the hook when it comes to their Russia ties either before or after his election.  For this objective could well have been sought on top of an effort to turn Mr. Trump into a Manchurian Candidate and President, not instead of it. But it does raise the question of how many of the allegations have stemmed from simple, and completely fictitious, plants.

Something else noteworthy about this article: If it’s accurate, then the potentially disastrous loss of America’s cyber-weapons to Russia and perhaps other adversaries that keyed Rosenberg’s piece was just the latest disclosed possibly catastrophic intelligence failures that occurred during Barack Obama’s presidency, and on the watches of the former intelligence agency chiefs, like his Director of National Intelligence (the complex’s top job) James R. Clapper, and one of his Central Intelligence Agency (CIA) Director John O. Brennan – both of whom have been particularly sharp Trump critics.

Two others? China’s penetration of the CIA’s operations in the People’s Republic, which reportedly resulted in the assassination or capture of “more than a dozen sources” (according to press accounts, the breach began in 2010, under Brennan’s predecessor, former General David Petraeus) and the failure to anticipate the speed of North Korea’s nuclear weapons development (which can be laid directly at Clapper’s feet, and which Brennan apparently missed as well).

Clapper, incidentally, is now a “national security analyst” for CNN. Brennan has just joined NBC and MSNBC in the same capacity. Good luck to you if you think there’s any chance these networks’ weekend talk shows tomorrow will raise any of this, including the Rosenberg article, with them?