Russian Contacts and Investigative Interference: A Timeline

On last week’s episode of The 45th podcast, I went through a timeline of events leading up to Comey’s testimony before the Senate Intelligence Committee on June 8th, with a focus on the Trump Team’s post-election contacts with Russia, and actions by Trump that were either intended to, or could have the effect of, impeding the investigation into those contacts. There have been a few requests for some kind of graphic outlining what was discussed in the episode, so here it is.

Heads up, you’re probably going to have to open the diagram in a new tab to be able to read all of it [PDF]. Also, since there’s only so much that can fit in a graph, I’ve made a separate table, below, with record citations and larger article excerpts.

Trump-Russia Timeline

 

Nov. 8, 2016: Trump is elected. The transition team begins its work.
Week of Nov. 21, 2016: Flynn Informs Trump’s National Security Transition Team of His Plans to Talk to Kislyak: Flynn, who spent most his time in Trump Tower during the transition, goes to DC to meet with the rest of Trump’s national security “landing team.” Flynn informs the team that he has scheduled “a conversation” with Kislyak.  (WP, 5/5/17).

Billingslea Warns Flynn That His Communications With Kislyak Will Be Intercepted by the U.S. Government: “Flynn was told during a late November meeting that Russian Ambassador Sergey Kislyak’s conversations were almost certainly being monitored by U.S. intelligence agencies.” (WP, 5/5/17). It is possible that this accounts involves some level of revisionist history, as this is information that Flynn — the former DIA director — unquestionably already knew.

Nov. 28-30, 2016: The Trump Transition Team Requests Access to the CIA’s Classified Profile of Kislyak: “Shortly thereafter, during the week of Nov. 28, Billingslea and other transition officials met with lower-level Obama administration officials in the Situation Room at the White House. At the end of the meeting, which covered a range of subjects, Billingslea asked for the CIA profile. ‘Can we get material on Kislyak?’ one recalled Billingslea asking.” (WP, 5/5/17).
Dec. 1 or 2, 2016: Flynn and Kushner Meet With Kislyak in Trump Tower to Discuss the Creation of a Secret “Back Channel” Method of Communication Between the Trump team and the Russian Government That Would Not Be Detected by the United States: News of this meeting was initially disclosed in late March 2017, and in response, the White House issues a statement that the purpose of the meeting was “to explore whether a channel could be set up between the Russian government and the incoming administration to improve relations between the United States and Russia” and that the parties “discussed how the United States and Russia could cooperate on issues in the Middle East.” (NYT, 3/27/17). Two months after news of the Kushner/Kislyak/Flynn meeting first broke, it was reported that these communications went far beyond merely a discussion of ways to “improve relations” between the two countries. Kushner and Kislyak “discussed the possibility of setting up a secret and secure communications channel between Trump’s transition team and the Kremlin, using Russian diplomatic facilities in an apparent move to shield their pre-inauguration discussions from monitoring, according to U.S. officials briefed on intelligence reports.” (WP, 5/26/17).

Flynn, Kushner, and Kislyak Discussed Military Cooperation Between the U.S. and Russia: “The idea behind the secret communications channel, the three people said, was for Russian military officials to brief Mr. Flynn about the Syrian war and to discuss ways to cooperate there.” (NYT, 5/26/17).

Unknown dates in December: The Obama Administration Becomes Alarmed by the Transition Team’s Contacts with Russia and Mishandling of Classified Information: “Obama advisers delayed telling Trump’s team about plans to punish Russia for its election meddling. Obama officials worried the incoming administration might tip off Moscow, according to one Obama adviser.” (AP, 5/5/17).

“After learning that highly sensitive documents from a secure room at the transition’s Washington headquarters were being copied and removed from the facility, Obama’s national security team decided to only allow the transition officials to view some information at the White House, including documents on the government’s contingency plans for crises.” (AP, 5/5/17).

Unknown date between Dec. 3 and Dec. 11, 2016: Kislyak Meets With Kushner’s Assistant, Avi Berkowitz, and Relays a Request For Kushner to Meet with Sergey Gorkov, the Head of a Russian Bank Under U.S. Sanctions: “… Mr. Kislyak requested a second meeting, which Mr. Kushner asked a deputy to attend in his stead, officials said. At Mr. Kislyak’s request, Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which the United States placed on its sanctions list after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.” (NYT, 3/27/17). Kushner’s decision to send a young  but trusted subordinate to the meeting with the Russian ambassador indicates that both parties knew the request for a “meeting” was in fact a way for Kislyak to securely send a message to Kushner, in a way unlikely to be detected by the U.S. government or the media.
Dec. 12 or 13, 2016: Kushner Meets With Gorkov: “Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which the United States placed on its sanctions list after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.” (NYT, 3/27/17).

Gorkov and the White House Give Opposing Explanations for the Purpose of the Meeting with Kushner: “The bank maintained this week that the session was held as part of a new business strategy and was conducted with Kushner in his role as the head of his family’s real estate business. The White House says the meeting was unrelated to business and was one of many diplomatic encounters the soon-to-be presidential adviser was holding ahead of Donald Trump’s inauguration.” (WP, 6/1/17).

Dec. 14, 2016: After Meeting With Kushner, Gorkov Immediately Flies to Japan to Meet with Putin: “After leaving Newark on Dec. 14, the jet headed to Japan, where Putin was visiting on Dec. 15 and 16. The news media had reported that Gorkov would join the Russian president there.” (WP, 6/1/17).
Dec. 19, 2016: “Flynn reportedly called Kislyak on December 19, 2016 to express condolences for the assassination of the Russian ambassador to Turkey. Flynn and Kislyak then exchanged holiday greetings by text on December 25, 2016, according to an account by Sean Spicer.” (WP, 2/14/17).
Dec. 29, 2016: The Obama Administration Expels Diplomats In Response to Russian Interference in 2016 Election: 35 Russian diplomats are expelled, two compounds are closed, and new economic sanctions are announced.

Flynn and Kislyak Have At Least Five Phone Calls Following the Imposition of the New Sanctions: “National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said. Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.” (WP, 2/9/17).

Flynn Reassures Russia That Things Will Be Different Once Trump Is In Office:“Throughout the discussions, the message Mr. Flynn conveyed to the ambassador, Sergey I. Kislyak — that the Obama administration was Moscow’s adversary and that relations with Russia would change under Mr. Trump — was unambiguous and highly inappropriate, the officials said. … [C]urrent and former American officials said that conversation — which took place the day before the Obama administration imposed sanctions on Russia over accusations that it used cyberattacks to help sway the election in Mr. Trump’s favor — ranged far beyond the logistics of a post-inauguration phone call. And they said it was only one in a series of contacts between the two men that began before the election and also included talk of cooperating in the fight against the Islamic State, along with other issues.” (NYT, 2/8/17).

Dec. 30, 2016: Putin Announces That Russia Will Not Retaliate Against the U.S.: “Putin regretted that Obama was finishing his term by imposing new sanctions against Moscow, saying that Moscow considered new unfriendly steps of the outgoing U.S. administration a ‘provocation aimed at further undermining the Russia-U.S. relations.’ Russia, which reserves the right to retaliate, will not stoop to the level of irresponsible ‘kitchen’ diplomacy and will determine further steps in mending ties with the U.S. based on President-elect Donald Trump’s future policy, Putin added.” (Xinhua, 12/30/16).

Trump Tweets That Putin is Smart and Russia is Playing the U.S. Media:

2:41pm: “Great move on delay (by V. Putin) – I always knew he was very smart!”

5:18pm: “Russians are playing @CNN and @NBCNews for such fools – funny to watch, they don’t have a clue! @FoxNews totally gets it!”

Jan. 6, 2017: Comey Meets with Trump To Report on Russian Election Interference Investigation (and to Break the News About the Pee Pee Tape): “In that context, prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President-Elect Trump’s reaction to the briefing and without him directly asking the question, I offered that assurance. I felt compelled to document my first conversation with the President-Elect in a memo.” (Comey, 6/8/17).
Jan. 7, 2016: Trump Tweets About Russia: “Having a good relationship with Russia is a good thing, not a bad thing. Only ‘stupid’ people, or fools, would think that it is bad! We [ ] have enough problems around the world without yet another one. When I am President, Russia will respect us far more than they do now and [ ] both countries will, perhaps, work together to solve some of the many great and pressing problems and issues of the WORLD!”
Jan. 11, 2017: Erik Prince, Betsy DeVos’ Brother, Meets With a Russian Representative in the Seychelles Islands To Discuss Development of a Back Channel Communication Method: “The United Arab Emirates arranged a secret meeting in January between Blackwater founder Erik Prince and a Russian close to President Vladi­mir Putin as part of an apparent effort to establish a back-channel line of communication between Moscow and President-elect Donald Trump[.] The meeting took place around Jan. 11 [ ] in the Seychelles islands in the Indian Ocean. . . . [T]he UAE agreed to broker the meeting in part to explore whether Russia could be persuaded to curtail its relationship with Iran, including in Syria, a Trump administration objective that would be likely to require major concessions to Moscow on U.S. sanctions.” (WP, 4/3/17) (emphasis added).
Jan. 12, 2017: Washington Post Breaks Story of Flynn’s Phone Calls with Kislyak on Day Ambassadors Were Expelled: “According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions?” (WSJ, 1/12/17).
Jan. 13, 2017: Trump Indicates That He Will Lift Russian Sanctions if Russia Assists the U.S. in Syria: Trump tells the Wall Street Journal that Russia can help us fight terrorists (such as, say, in Syria), and “If you get along and if Russia is really helping us, why would anybody have sanctions if somebody’s doing some really great things?” (WSJ, 1/13/17).

Trump Team States Flynn and Kislyak Had One Call on December 28th, Then Clarify That Call Was Actually on December 29th: “Trump adviser Michael Flynn and Ambassador Sergey Kislyak spoke Dec. 29 to discuss scheduling a conversation between Trump and Russian President Vladimir Putin after the president-elect is sworn in, transition spokesman Sean Spicer told reporters Friday. Spicer had initially said the two spoke Dec. 28, the day before the sanctions. Late Friday, Spicer said he was mistaken about the date. He said the call followed an exchange of texts originated by Flynn to wish the ambassador merry Christmas. ‘They exchanged logistical information on how to initiate and schedule that call,’ Spicer said. ‘That was it, plain and simple.'” (Bloomberg, 1/13/17).

Jan. 14, 2017: The White House Acknowledges Flynn’s Calls with Kislyak, But Deny Any Discussion of Sanctions: “During the call, the Russian ambassador invited U.S. officials to a conference on Syria later this month that is being held in Kazakhstan, according to the transition official, who was not authorized to publicly discuss the matter and insisted on anonymity.” (AP, 1/14/17).
Jan. 15, 2017: Vice President Pence States That He Has Talked to Flynn About the Kislyak Calls, and Sanctions Were Not Discussed:

MIKE PENCE:“I talked to General Flynn yesterday, and the conversations that took place at that time were not in any way related to new U.S. sanctions against Russia and the expulsion of diplomats.” (Fox, 1/15/17).

MIKE PENCE: “I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russians.” (CBS, 1/15/17).

Mid-January, 2017: The White House’s Story on the Nature of Flynn’s Calls with Kislyak Continually Evolves: “AP has also pointed to inconsistencies in the Trump team’s response about the phone calls. While White House Press Secretary Sean Spicer initially claimed there was only one phone call on December 28th, a transition official confirmed that Flynn had spoken with Kislyak on December 29th, ostensibly about having a U.S. presence for the Syrian peace talks in Kazakhstan. According to NBC, the call on December 29th had not been cleared by the White House, and Spicer claimed this call was to set up a future phone call between Trump and Russian President Vladimir Putin.” (Lawfare, 1/25/17).
Jan. 19, 2017: Yates and Comey Debate Whether Informing Trump About Flynn Will Interfere With Investigation: “The internal debate over how to handle the intelligence on Flynn and Kislyak came to a head on Jan. 19, Obama’s last full day in office. Yates, Clapper and Brennan argued for briefing the incoming administration so the new president could decide how to deal with the matter. The officials discussed options, including telling Pence, the incoming White House counsel, the incoming chief of staff or Trump himself. FBI Director James B. Comey initially opposed notification, citing concerns that it could complicate the agency’s ­investigation.” (WP, 2/13/17).
Jan. 23, 2017: Spicer Inaccurately States at Press Conference That Kislyak and Flynn Did Not Discuss Sanctions:

QUESTION: Were those conversations about anything else other than setting up that discussion? And why has that discussion not yet happened between the president and President Putin?

SPICER: So there’s been one call. I talked to General Flynn about this again last night. One call, talked about four subjects. One was the loss of life that occurred in the plane crash that took their military choir, two was Christmas and holiday greetings, three was to — to talk about a conference in Syria on ISIS and four was to set up a — to talk about after the inauguration setting up a call between President Putin and President Trump.

That — I don’t believe that that has been set up yet because the call was to say — they did follow up, I’m sorry, two days ago about how to facilitate that call once again. So there have been a total of two calls with the ambassador and General Flynn. And the second call came — I think it’s now three days ago — that was to say once he gets into office, can we set up that call? It hasn’t — to my knowledge, has not occurred yet.

QUESTION: Any other conversations between General Flynn and Russian members of the government?

SPICER: Not that I’m aware of. And when I say that, what I’m saying is during the transition, I asked General Flynn that — whether or not there were any other conversations beyond the ambassador and he said no. (Daily Press Conference, 1/23/17).

Jan. 26, 2017: Acting Attorney General Sally Yates Meets with the White House to Warn Them That Flynn is Lying About Russia, and At Risk of Being Blackmailed: “Former acting attorney general Sally Yates testified Monday that she expected White House officials to ‘take action’ on her January warning that then-national security adviser Michael Flynn could be blackmailed by Russia, offering her first public statements about the national security concerns that rocked the early days of the Trump administration. . . . ‘We began our meeting telling [White House attorney Don McGahn] that there had been press accounts of statements from the vice president and others that related to conduct that General Flynn had been involved in that we knew not to be the truth,’ Yates said. ‘The vice president was unknowingly making false statements to the American public, and General Flynn was compromised by the Russians.'” (WP, 5/8/17).

McGahn Immediately Informs President Trump About Yates’ Warning on Flynn: “White House officials have said McGahn immediately took the issues raised by Yates to the president but determined there was no pressing criminal issue. It is not clear what other actions, if any, White House officials took after the warning from Yates.” (WP, 5/8/17).

Jan. 27, 2017: McGahn Calls Yates and Asks Her to Come Back in For Another Meeting: At the meeting, McGahn asks four questions:

  • Why did it matter to the Justice Department if one White House official lied to another?
  • What criminal statutes did Flynn potentially violate?
  • Would taking action against Flynn immediately interfere with the FBI’s investigation?
  • Could he see the underlying evidence collected in Flynn’s interview?

In response to the last question, Yates told McGahn that he could see the evidence, but as it was late on Friday afternoon, she said she would have the FBI compile the evidence over the weekend, and asked McGahn to call on Monday and make plans to come in then.

Trump Calls FBI Director Comey and Invites Him to Dinner: “He had called me at lunchtime that day and invited me to dinner that night, saying he was going to invite my whole family, but decided to have just me this time, with the whole family coming the next time. . . . It turned out to be just the two of us, seated at a small oval table in the center of the Green Room. Two Navy stewards waited on us, only entering the room to serve food and drinks.” (Comey, 6/8/17).

Trump Asks Comey For His Loyalty: “A few moments later, the President said, ‘I need loyalty, I expect loyalty.’ I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner.” (Comey, 6/8/17).

Jan. 30, 2017: On Monday Morning, Yates Calls McGahn and Says the Evidence Against Flynn is Available for His Review: Yates made arrangements over the weekend for White House officials to meet at the DOJ and review the evidence against Flynn, and on Monday morning she told McGahn he could come in to view it.

On Monday Evening, Trump Fires Yates When She Refuses to Defend the Travel Ban in Court: As a result, Yates does not have knowledge as to where McGahn (or anyone else) came in to review the Trump evidence.

Jan. 31 – Feb. 12, 2017: The White House Does Nothing About Flynn for Two Weeks, Showing No Concern That the National Security Advisor Has Repeatedly Lied and Is Now Compromised:  ¯\_(ツ)_/¯
Feb. 8-9, 2017: Flynn Lies Again About Discussing Sanctions with Kislyak: “Flynn on Wednesday denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, ‘No.'” (WP, 2/9/17).

Reports Break News of Intercepted Calls Showing That Flynn and Kislyak Discussed Sanctions: In response, Flynn changes his story to “indicate[ ] that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.” (WP, 2/9/17).

Feb. 10, 2017: Trump Denies Knowledge of Reports of Flynn’s Communications with Kislyak: “Flynn traveled to Florida with Trump aboard Air Force One. During the flight, reporters asked Trump about the Washington Post story while on the way to Mar-a-Lago for the weekend. ‘I don’t know about that. I haven’t seen it,’ Trump said. ‘What report is that?’ He added, ‘I haven’t seen that. I’ll look into that.’ A White House official later said Trump’s ‘full day’ contributed to his lack of knowledge of the story.” (ABC, 3/31/17).
Feb. 13, 2017: Flynn Resigns as National Security Advisor: “Michael T. Flynn, the national security adviser, resigned on Monday night after it was revealed that he had misled Vice President Mike Pence and other top White House officials about his conversations with the Russian ambassador to the United States. Mr. Flynn, who served in the job for less than a month, said he had given ‘incomplete information’ regarding a telephone call he had with the ambassador in late December about American sanctions against Russia, weeks before President Trump’s inauguration. Mr. Flynn previously had denied that he had any substantive conversations with Ambassador Sergey I. Kislyak, and Mr. Pence repeated that claim in television interviews as recently as this month.” (NYT, 2/13/17).
Feb. 14, 2017: Trump Asks Comey To ‘Let[] Go’ of the Flynn Investigation: “When[ ] we were alone, the President began by saying, ‘I want to talk about Mike Flynn.’ Flynn had resigned the previous day. The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify. . . . The President then returned to the topic of Mike Flynn, saying, ‘He is a good guy and has been through a lot.’ He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’ I replied only that ‘he is a good guy.’ I did not say I would ‘let this go.'” (Comey, 6/8/17).
March 20, 2017: Comey Testifies Before Congress That There is an Ongoing Investigation Into Collusion Between Russia and the Trump Campaign:

HIMES: So, you used the word coordination which to me suggests that you are in fact investigating whether there was coordination between U.S. persons and the Russians. Is it fair for me to assume that we shouldn’t simply dismiss the possibility that there was coordination or collusion between the Russian efforts and U.S. persons as an investigatory body?

COMEY: Well all I can tell you is what we’re investigating which includes whether there was any coordination between people associated with the Trump campaign and the Russians. (Hearing Before the House Intelligence Committee, 3/20/17).

March 22, 2017: Trump asks Director of National Intelligence Daniel Coats and CIA Director Mike Pompeo to Intervene in FBI’s Investigation of Russian Collusion: “The nation’s top intelligence official told associates in March that President Trump asked him if he could intervene with then-FBI Director James B. Comey to get the bureau to back off its focus on former national security adviser Michael Flynn in its Russia probe, according to officials. … Director of National Intelligence Daniel Coats attended a briefing at the White House together with officials from several government agencies. As the briefing was wrapping up, Trump asked everyone to leave the room except for Coats and CIA Director Mike Pompeo. The president then started complaining about the FBI investigation and Comey’s handling of it… After the encounter, Coats discussed the conversation with other officials and decided that intervening with Comey as Trump had suggested would be inappropriate, according to officials who spoke on condition of anonymity to discuss sensitive internal matters.” (WP, 6/6/17).
March 23 and 24, 2017: Trump Calls Coats and NSA Director Michael Rogers to Request That They Issue Statements Denying Any Evidence of Collusion with Russia: “Trump made separate appeals to the director of national intelligence, Daniel Coats, and to Adm. Michael S. Rogers, the director of the National Security Agency, urging them to publicly deny the existence of any evidence of collusion during the 2016 election.” (WP, 5/22/17).

Coats and Rogers Refuse the Request, Because the Statement Would Be Untrue: “Coats and Rogers refused to comply with the requests, which they both deemed to be inappropriate[.] Trump’s conversation with Rogers was documented contemporaneously in an internal memo written by a senior NSA official[.] . . . ‘The problem wasn’t so much asking them to issue statements, it was asking them to issue false statements about an ongoing investigation,’” a former senior intelligence official said of the request to Coats.” (WP, 5/22/17).

March 30, 2017: Trump Calls Comey Directly To Ask If He Can ‘Lift the Cloud’ of the Russia Investigation Away from His Presidency: “On the morning of March 30, the President called me at the FBI. He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him. Then the President asked why there had been a congressional hearing about Russia the previous week – at which I had, as the Department of Justice directed, confirmed the investigation into possible coordination between Russia and the Trump campaign.” (Comey, 6/8/17).
April 11, 2017: Trump Calls Comey Again to Ask What Progress He Has Made In Getting Out the News That Trump Is Not Being Investigated: “On the morning of April 11, the President called me and asked what I had done about his request that I “get out” that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that “the cloud” was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel. He said he would do that and added, “Because I have been very loyal to you, very loyal; we had that thing you know.” I did not reply or ask him what he meant by “that thing.” I said only that the way to handle it was to have the White House Counsel call the Acting Deputy Attorney General. He said that was what he would do and the call ended.” (Comey, 6/8/17).
May 3, 2017: Comey Testifies That the Russia-Trump Collusion Investigation Is Still Ongoing:

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?

COMEY: Yes.

GRAHAM: OK. So nothing’s changed. You stand by those two statements?

COMEY: Correct. (Comey, 5/3/17).

May 8, 2017: Trump Informs Rosenstein of His Intent to Fire Comey: “On May 8, I learned that President Trump intended to remove Director Comey and sought my advice and input. Notwithstanding my personal affection for Director Comey, I thought it was appropriate to seek a new leader. I wrote a brief memorandum to the Attorney General summarizing my longstanding concerns about Director Comey’s public statements concerning the Secretary Clinton email investigation. I chose the issues to include in my memorandum. Before finalizing the memorandum on May 9, I asked a senior career attorney on my staff to review it. That attorney is an ethics expert who has worked in the Office of the Deputy Attorney General during multiple administrations. He was familiar with the issues. I informed the senior attorney that the President was going to remove Director Comey, that I was writing a memorandum to the Attorney General summarizing my own concerns, and that I wanted to confirm that everything in my memorandum was accurate. He concurred with the points raised in my memorandum. I also asked several other career Department attorneys to review the memorandum and provide edits.” (Rosenstein, 5/19/17). Notably, Rosenstein’s memo does not actually recommend Comey’s firing.
May 9, 2017: Trump Fires Comey, White House States That Trump Was Simply Following Rosenstein’s Recommendation: Initially, the White House’s messaging is (mostly) unified and targeted: Comey was fired on Rosenstein’s recommendation. “Sessions forwarded Rosenstein’s memo to Trump and recommended that he remove Comey from his role. “Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI,” Sessions’ letter said.  White House press secretary Sean Spicer also reiterated during a news briefing that night that the decision to fire Comey was driven entirely by the Department of Justice and Rosenstein. … ‘It was all him,’ Spicer said, referring to Rosenstein. ‘No one from the White House. That was a DOJ decision.’ The next day, Vice President Pence told reporters that Rosenstein had independently reviewed and recommended that Comey be fired. Later, however, deputy press secretary Sarah Huckabee Sanders said that Trump had actually been considering firing Comey for months, and that he had asked Sessions and Rosenstein for their recommendations.” (Business Insider, 5/13/17).
May 11, 2017: Trump Changes Course, Admits During Interview That He Decided To Fire Comey Because of the Russia Investigation: “[Rosenstein] made a recommendation, he’s highly respected, very good guy, very smart guy. The Democrats like him, the Republicans like him. He made a recommendation. But regardless of [the] recommendation, I was going to fire Comey. Knowing there was no good time to do it! And in fact when I decided to just do it I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.'” (NBC, Holt interview, 5/11/17).

-Susan

Thoughts on the Coming Resistance

Most of my free time these days goes to the podcast — or, at least, that’s my excuse for why I haven’t blogged regularly in over a year now, and I doubt I’ll be resuming regular blog posts again any time soon. But I felt the need to write something about what happened two weeks ago, about this future that has not yet happened but soon will be, compelled by a vague feeling that I did not want to let this moment of suspension pass without registering my dissent.

If you’re the kind of person that would be reading this blog, you probably already know about the Hamilton affair. To recap, on Friday the soon-to-be Vice President Pence decided to attend Hamilton, a musical about the American Revolution with an emphasis on parts of America that Pence’s stated policy positions would not appear to support. At the end of the show, as Pence was leaving, Vice President Burr’s actor read out a statement while the rest of the cast linked arms behind him:

We had a guest in the audience this evening. And vice president elect Pence, I see you’re walking out, but I hope you will hear us, just a few more moments… We have a message for you sir, and we hope that you will hear us out. Vice president elect Pence, we welcome you and we truly thank you for joining us here at Hamilton: An American Musical. We, sir — we are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights, sir. But we truly hope that this show has inspired you to uphold our American values, and work on behalf of ALL of us, all of us. We truly thank you for sharing this show, this wonderful American story told by a diverse group of men and women of different colors, creeds, and orientations.

In response, the president elect of these United States took to Twitter to denounce the Hamilton cast for “harass[ing]” the vice president elect, declaring that such public statements of dissent “should not happen.” He then demanded that the cast “apologize!” for voicing their concern that the new administration will not protect them.

You’re going to hear this a lot more over the next four years, but: this is not normal, this is not okay, and this is not going to be okay. Trump’s words are chilling, both figuratively and constitutionally, and although the fact those “words” took the form of a social media rant may add an extra air of dystopian parody to the whole mess, they are no less dangerous for that. But I think what leaves me the coldest, what amplifies those feelings of anxiety and alarm the most, is that Trump spent a few extra precious characters out of his 140 to decry that there were “cameras blazing” when this act of dissent occurred. The cast of a Broadway musical humiliated his proxy, and then that humiliation was broadcast to the world. In the president-to-be’s mind, “This should not happen!”

The Hamilton affair was not, of course, an isolated event. Among Trump’s very first acts as the President Elect of the United States was to announce that protests of his presidency were “very unfair” to him, and to inform the world that those protests were not genuine expressions of disagreement among the populace, but an artificial insurgency funded by shadowy forces, and (somehow also) incited by a corrupt media. In the days since, he has launched a barrage of attacks that have de-legitimized the media, both by directly describing a major media publication as “failing” and “dishonest,” and by making self-aggrandizing and fabricated claims of his achievements, which in turn were picked up and reported on by those in the media clinging to the antiquated belief that reality is a meaningful construct for this administration.

And yes, I agree that the Hamilton affair is only one of many serious and disturbing developments in recent days, most of which are being shamefully under-reported. That does not mean that it can or should be dismissed as a theatrical sideshow, though. A president elect’s expressions of outrage that the citizenry would use the First Amendment in a way he doesn’t like is a big deal. The message is clear: the president will be calling out and attacking individual citizens who expose him to public criticism. Unfortunately, based on the experiences of the past 12+ months, it’s a safe bet that this event’s significance will be mostly overlooked in favor of sensationalist headlines and false equivalencies, and the whole kerfuffle will be forgotten entirely by Monday. And all the other presidentially disqualifying events of the weekend will, somehow, be lost in the shuffle.

That’s where the hopelessness starts to find root. What can be done, when the president himself is understood to be so intrinsically corrupt that acts of his corruption cease to be newsworthy events? And why have so many Republican lawmakers capitulated to this pretense that Trump is an acceptable president, when I still believe, must believe, that they too know the emperor has no clothes?

That last question is mostly rhetorical. The opportunity for unchecked and unpopularly-elected power was too much to turn down, and they have convinced themselves things will go better for them than they did for Faust. They believe that they can channel Trump to serve their own ends; I think they are wrong about that. Either way, they have willingly gambled on this country’s future by supporting Trump in the hopes that, when it all shakes out, they will be able to use this opportunity to further their own agendas while minimizing Trump’s more “awkward” policy positions, even knowing that, should the dice land the wrong way, their support will enable Trump to carry out his unconstitutional goals.

The Hamilton affair is one more warning that our elected officials are wrong to make this wager. Trump’s ongoing series of tweets raging at this display defiance by private citizens — four tweets in total, at last count, with one deleted — is not a meaningless distraction, it is a warning. President elect Trump does not have the capability to tolerate dissent to his rule. Although there are many contenders to choose from, it is this failing, I think, that will be the greatest threat to our nation. The guiding stars of Trump’s life are an obsession with vengeance and an unquenchable need for affirmation by the external world; the danger ahead lies in that the office of the presidency will provide him with nearly unlimited resources to fulfill this first directive, while rendering the second permanently beyond his reach.

Starting on January 20th, Trump will attempt to use the power of his office to enforce a belief that he is a worthy leader. He will not succeed. When he realizes that he will never have the respect of the people, he will settle for having their fear instead. If need be (and it will probably need be), he would try to break the Constitution to protect his own ego.

There is no possibility that Trump might instead do well enough at the job to earn the validation he believes is his due, and therefore have no need to mandate it. Trump has no abilities that are desirable in a statesmen, and has displayed no aptitude for government administration. Although his “talents for low intrigue and the little arts of popularity” aided him as a campaigner, it is those same attributes that led some of the founding fathers, in an ill-conceived attempt to prevent a Trumpian figure from one day ascending to the presidency, to place the choice of the executive in the hands of a special group of electors rather than with the people. That it was this subversion of the democratic ideal that ultimately made a Trumpian presidency possible is an irony that has not gone unnoticed, but there may be some cold comfort to be drawn from knowing that it was not democracy itself that failed here.

If things go as well as could possibly be hoped, the next four years will be a painfully awkward moment in our nation’s history. Things will probably not go as well as could possibly be hoped. If things go bad — like, darkest timeline bad — we may end up learning the answer to Trump’s favorite campaign-trail question: what do we have to lose? Because there may have been periods in our history where four years of rule by an autocratically-inclined idiot would have caused minimal damage, but those times are long past. Our institutions and economies are too interconnected for us to miss a step and not cause the rest of the world to stumble, and we are now living on a planet that, day by day, is becoming less hospitable to human life.

My hope is that, four years from now, we’ll be able to look back at this post and mock it for being overwrought alarmism, and that our institutional mechanisms for self-correction will turn out to have been more robust than my fears. If that happens, I’ll laugh too, at myself, and in relief. I think, though, that denial of the threat Trump poses is more dangerous than any alarmism could ever be, and the American exceptionalism that tells us this can only get sorta bad, that this can’t actually get scary bad, will drag us down faster than Trump’s petty vindictiveness ever could.

Because it takes no special insight to predict that the coming administration is a threat to this country in a way no other administration has been. Trump’s threats to the First Amendment are only one facet of his manifest unsuitability, as he has spent all of 2016 and a good chunk of 2015 demonstrating. For a heavily abridged sampling,

  • Trump does not value the truth, either coming from himself or from others. He lies, constantly, for his own gain; not even his most ardent supporters would (or could) deny that, they just pretend this is a strategy. Which, okay yes, it is, but it is also a terrifying threat to our national security. Our allies cannot rely on America’s word, because the executive is our voice in the realm of foreign affairs, and beginning on January 20, 2017, our word will not be tied to any single objective meaning and will have no predictive value. If you doubt the danger, ask yourself this: what happens when other nations have no idea whether the president of the United States was telling the truth when he said he thought more countries should obtain nuclear weapons, or whether he was telling the truth when he said he thought they should not? What happens when they ask themselves how their neighbors will answer that same question?
  • Trump is corrupt. He is going to wield the office of the president for his maximum financial benefit, and is making only the barest efforts to pretend otherwise. I do not think he will continue with the pretending for much longer. He has already begun laying the groundwork for his newest theme: there is nothing improper or even undesirable for a president to increase his wealth through being president, because he’ll be increasing everyone else’s wealth at the same time, too. He is already profiting from being president, by having his financially untenable hotel propped up by foreign dignitaries that feel compelled to stay there in order to curry presidential favor. He has also had the family members that are running his business empire sit in on meetings with foreign heads of state, and is seeking to have his son-in-law get the top secret clearance necessary to be privy to his foreign affairs briefings; this information will necessarily be used by the Trump family to further the interests of their businesses, because it is impossible that they will not take that information into account when making business decisions.
  • Trump is supporting a white nationalist agenda. He claims to have been elected due to the economy, but his appointments so far have shared one overwhelming focus: white men obsessed with the national security threat posed by non-whites and non-Americans. Only one appointment so far (hi there, Mr. Priebus) breaks this mold, by being just the regular sort of Republican with no close ties to white supremacists, people that have proposed Muslim registration as a national security measure, and/or Russia. All the rest have openly espoused racism and xenophobia as desirable attributes in a government, or are openly on the payroll of foreign despots.

These are not the kinds of things that can happen to a country and then have everything somehow come out okay. These are the kinds of things that happen to a country just before something very dangerous and undemocratic occurs. I do not know what can be done to stop it, but I do know that no resistance can begin until Trump’s fascism is recognized for what it is.

To those who support Trump, I would encourage you to disagree with this assessment while remaining open to the possibility that there may be genuine cause for alarm. Maintain awareness of what the Trump administration is doing and how that compares to our ideals as a nation, and if, at a later date, you should see something his administration has done that undermines those ideals, then speak out against it, even if you maintain support for his presidency as a whole. And to those who are frightened about what the future holds, well, I am right there with you. All I’ve got is this: as a nation, we are really good at falling down and getting back up again. One of our greatest virtues has always been our ability to come back from disaster, even though as often as not we were the ones that invited it in. There is no reason to think it is impossible for us to do so once more.

For those of us who believe that this country has a promise it has not yet managed to fulfill, there is much to grieve, but America has never been close to perfect. The fact we’re even less close now is not an excuse to give up on efforts to strive in that direction. Our current president will likely come to regret, along with the rest of us, his dangerous expansion of the executive power, but Obama’s words to his daughters on what Trump’s election means are the best chance we have of making it through this intact: “[Y]our job as a decent human being is to constantly affirm and lift up and fight for treating people with kindness and respect and understanding.”

-Susan

Exhibit 31 Was Not a Certified Business Record

In today’s episode of Undisclosed, Postconviction Relief Part 5: Closing Thoughts, we discussed in greater detail how the cellphone records at Adnan’s trial were not the authenticated copy of records that they were purported to be. Although Exhibit 31 — a.k.a. the Frankenzibit — had been presented by the prosecutors as an authenticated copy of AT&T’s business records, the documents that were authenticated by AT&T had been substituted for a different and unauthenticated copy of the records, from which all fax information had been removed.

You can see these differences four yourself by comparing Urick’s fax to AT&T requesting authentication of the State’s copies of the cellphone records, and Exhibit 31 as it was admitted at trial. To show the differences between the two documents, I’ve provided below a side-by-side comparison of each page. (Note that the substantive records begin at Page 2 of Exhibit 31; the first page is the affidavit from AT&T’s custodian.)


Pg 2

Page 2 Comparison

The second page of Exhibit 31 is the subscriber information sheet from AT&T’s 2/17 fax. In the document Urick sent to AT&T for authentication, the top line reads: “SENT BY: 2-17-99 ; 11:30am ; AT&T WIRELESS SVCS-  914103962257 ; #2.”

Page 2 header.png

In Exhibit 31, the top line has been chopped off, and the entire page has been shifted upwards — including the hole punches on the left-hand side, which are now noticeably higher than those on the authenticated copy.

Pg 3

Page 3 Comparison

The third page of Exhibit 31 is the last page AT&T’s 2/22 fax, containing part of the phone records for January 12, as well as blank entries for phone records from January 9 – 11 (prior to the phone’s activiation). On the left side of the document faxed by Urick to AT&T, the edge of the original fax header is visible, while it has been removed from the copy submitted as Exhibit 31.

Pg 4

Page 4 Comparison

The fourth page of Exhibit 31 is the second to last page of AT&T’s 2/22 fax, containing part of the January 14 records, all of the January 13 records, and the beginning of the January 12 records. In Urick’s fax to AT&T, the fax header information has already been almost entirely cut off (although it remains present in the prosecution’s other copy of the January 13 records from the 2/22 fax). However, because the original fax from AT&T was slightly askew, the border of the fax header information is not parallel with the page’s text, and runs off at a ~15° angle. In the corresponding page from Exhibit 31, this has been corrected with the help of a paper guillotine; however, because of the angle required to even up the page, the sheet of paper was no longer a rectangle, and copies made from the cut sheet show where fax header side was cut off (circled in blue, top right of image).

Page 4 - Cut Corner.png

The shadow from where the paper is lying on the copier glass is visible, demonstrating that the corner is not at a 90° angle.

Pg 5

Page 5 Comparison

The fifth page of Exhibit 31 is the third-to-last page of AT&T’s 2/22 fax, containing the beginning of the January 14th records and part of the January 15th records. In Urick’s fax to AT&T, a recognizable portion of the fax header information line is present:

Page 5 header.png

However, in the document submitted as Exhibit 31, the fax header has been removed, and the entire page has been repositioned so that the text is angled correctly.


To break down how this happened, and why this switch went unnoticed at trial, it helps to review a timeline of events resulting in the creation of Exhibit 31:

  • On February 17th and 22nd, during the investigation into Adnan, AT&T faxed copies of Adnan’s phone records to the BPD (the 2/17 and 2/22 faxes, respectively). These copies had fax header information prominently displayed on all pages. It looked like this:

Page 4 header

  • Copies of these phone records were provided to the prosecution in preparation for Adnan’s October 13th trial date.
  • On October 8, 1999, Urick faxed four pages of phone records (one from the 2/17 fax, three from the 2/22 fax) to AT&T’s custodian of records, with a letter stating, “Pursuant to your telephone conversation this date, I am faxing you four pages of AT&T Wireless billing records that we obtained per a subpoena. I would appreciate it if you could return the records to me as certified business records.”
  • The cellphone records faxed to AT&T had the fax header partially removed, although the header remained fully or partially visible on three of the four pages.
  • AT&T’s records custodian reviewed the cellphone records sent by the prosecution, and on October 12th the custodian provided a sworn affidavit stating that “The attached copies of billing records are maintained by AT&T in the ordinary course of business.” The affidavit and records were then sent back to the prosecution for use at trial.
  • The prosecution discarded the certified copies of the phone records that it received back from AT&T, but kept the custodian’s sworn affidavit.
  • Using its own copies of the phone records, the prosecution prepared a new set of the four-page phone records, from which all traces of fax header information had been excised.
  • The affidavit from AT&T’s custodian was then reattached to the prosecution-constructed version of the phone records, and the new records — which had not been reviewed or certified by AT&T — were submitted as certified business records at Adnan’s trial.

In switching an authenticated copy of the phone records for an unauthenticated copy, the prosecution may very well have been motivated by expediency rather than strategy. After all, by that point, the documents would have been a fax of a fax, and possibly a fax of a fax of a fax. He may have decided that the certified business records sent back by AT&T were too messy, and decided to substitute the authenticated records for a “cleaned up” version, one which had been snipped and rotated to make it more professional in appearance.

But the prosecution’s motives in making the switch are irrelevant. An inadvertent failure to disclose exculpatory information has the same constitutional effect as a deliberate failure. Here, regardless of motive, the result was the same: although the genuine certified business records had information which plainly identified them as copies of a faxed document, the counterfeit version did not. A reasonable attorney reviewing Exhibit 31 — such as, say, the Deputy Attorney General of Maryland — could very reasonably conclude that,

 “Indeed, the ‘Subscriber Activity’ reports [sent by AT&T] were neither identified as exhibits nor admitted into evidence. What was admitted into evidence were cellphone records accompanied by a certification of authenticity, signed by an AT&T security analyst, and relied upon by the State’s expert who himself was employed by AT&T as a radio frequency engineer.”

However, contrary to the State’s claims in its recent briefing before the trial court, what was admitted into evidence (1) was a subscriber activity report, and (2) was not a certified business record authenticated by AT&T, but instead a different copy of the phone records that was missing information present in the genuine copy. This isn’t just a case questionable corner cutting by the prosecution that has no practical significance, however. If the instruction sheet is determined to be material and exculpatory evidence by the court, this was a Brady violation. Even had Gutierrez known that AT&T sent the instruction sheet along with all of the billing records that it faxed over — which she didn’t, because the prosecution did not disclose those records to her — Gutierrez still had no reasonable way of knowing that Exhibit 31 was itself a document faxed to BPD by AT&T, to which the instruction sheet applied. The fax headers identifying the origins of Exhibit 31, and directly linking the records to the instruction sheet, had been eliminated, even though that information was present in the genuine copy of the records authenticated by AT&T.

-Susan

Serial: Lies, Damned Lies, and Closing Arguments

Note: Rabia Chaudry (Split the Moon), Colin Miller (Evidence Prof Blog), and I started a podcast. It’s called Undisclosed, and it follows Adnan Syed’s case and current appeal. New episodes will be released every other week, on Mondays, and in case that is too long to wait, on the off-weeks we will be releasing short addendum episodes with updates and previews.

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Before reading the post below, I recommend at least listening to Addendum 1, as some of the new information covered there is discussed in this post. And be sure to check us out next Monday, for Episode 2


In closing arguments, the prosecution “is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence.” United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991)). However, this latitude does not permit a prosecutor to make false and factually unsupported claims during closing arguments, as “[i]t is a fundamental tenet of the law that attorneys may not make material misstatements of fact in summation.” Davis v. Zant, 36 F.3d 1538, 1548 n. 15 (11th Cir. 1994). Accordingly, prosecutors have an “obligation [ ] to avoid making statements of fact to the jury not supported by proper evidence introduced during trial,” as “the interest of the Government in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’ and that ‘the average jury . . . has confidence that these obligations [of fairness and accuracy] will be faithfully observed.'”  Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969),  (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

In the case against Adnan Syed, this obligation was not respected. Prosecutors Kathleen Murphy and Kevin Urick displayed a reckless disregard for the truth in their closing arguments to the jury, both by making material misrepresentations about the physical evidence and by misstating witness testimony. For many of the misrepresentations made in closing, it is difficult to see how the prosecutors could have been unaware of the falsity of their arguments. Regardless of whether those misrepresentations were made intentionally or not, however, the prosecutors in Adnan’s case were “exceedingly reckless, and paid too short shrift to the prosecutors’ ‘obligation’ to seek a conviction only on the basis of facts in the record.” United States v. Mageno, 762 F. 3d 933 (9th Cir. 2014) (quoting Gaither, 413 F.2d at 1079).

Below, I have set forth (in blue) a selection of claims made in the State’s closing arguments, by Murphy, and rebuttal closing, by Urick, and provided an analysis of the accuracy of their representations to the jury.

Continue reading

Serial: The Maryland Court of Special Appeal’s Unpublished Decision Denying Adnan’s Appeal in 2003

One of the legal aspects of Adnan’s case that Serial gave little attention to (no attention to?) was the outcome of Adnan’s initial appeal, which was rejected by an unpublished opinion in 2003. The parties’ briefs in that appeal have been available online (see here for copies of appellant’s brief and appellee’s brief), but the actual decision handed down by the court was not. As a result, although we knew that the Maryland Court of Special Appeals (CoSA) had rejected Adnan’s arguments (several of which appeared to have a strong legal basis, although might not have necessarily warranted reversing his connection), we had no way of knowing the court’s reasoning for its decision.

After jumping through a few bureaucratic hurdles, I requested a copy of the opinion from the Maryland archives, and it finally arrived last week. Unfortunately, I was also out of town for all of last week, so the opinion got a little waterlogged while it was hanging out in my mailbox. It’s still legible, albeit slightly worse for the wear:

Syed v State - MD CoSA Opinion - No. 923-00 - cover

Continue reading

Zimmerman’s Acquittal, and the Coming Civil Suit

George Zimmerman was acquitted in the killing of Trayvon Martin — a not wholly surprising result, but by no means an inevitable one. From what one can conclude about the jury’s deliberations, with their apparent focus on the elements of manslaughter, the jury wasn’t sold on Zimmerman’s self-defense claim, but they weren’t wholly buying some part of the manslaughter charge.

But the system worked in this case, or at least it worked as well as the system can ever be expected to. Zimmerman had to face trial for his decision to kill an unarmed kid, and was not able to skip away from the shooting without a proper investigation or prosecution. What should have been a routine matter was turned into a media circus, and the narrative of the killing usually vastly overshadowed the actual facts of the case, but that shouldn’t overshadow the basic success that was accomplished — which is that the procedures of the criminal justice system were complied with, no matter what one thinks of the substantive result.

Zimmerman won’t go to jail, because he was able to claim — with no supporting evidence from anything outside of his own police statements — that a kid walking home from the store tried to commit murder, for no better reason than the kid had his feelings hurt by Zimmerman’s decision to follow him in his car. But “not guilty” has never meant “acted in a manner worthy of respect,” and anyone who claims that the acquittal is a vindication of Zimmerman’s insane actions is not someone worth listening to. Zimmerman was irresponsible, and a teenager died as a result.

And, although it should go without saying, Zimmerman being found “not guilty” does nothing to imply, not even in the tiniest amount, that Trayvon was guilty of any criminal acts.

But while the not guilty verdict is disappointing, it’s not outrageous. And Zimmerman’s legal defense is not yet over, because of the fact that Zimmerman has received hundreds of thousands of dollars in donations — money that he is unlikely to prove, with probable cause, that he should be able to keep. While I don’t find the result of the criminal case particularly upsetting, I would be outraged if Zimmerman is able to financially benefit from his decision to kill a kid. Luckily, I don’t expect that to happen. There should be a civil suit here, and all of Zimmerman’s blood money should go to Trayvon Martin’s estate.

If Zimmerman has sense, he will settle any civil claims brought — but nothing Zimmerman has ever done has indicated he has much sense to begin with. Which means Zimmerman will have to produce comprehensive information under the civil discovery process about his actions that night, as well as take the stand himself. And Zimmerman’s criminal defense won’t be sufficient to withstand that.

The Homeowner’s Association for the Retreat at Twin Lakes already settled with Martin’s estate for something above the $1 million policy limit of the HOA’s insurance coverage. Although the specific terms are under seal, and there is no way to know for sure what motivated the HOA to settle, the rumors that have leaked out about the settlement suggest that the HOA had significant exposure on several fronts. Most significantly, it appears that (1) the HOA failed to properly complete the Neighborhood Watch certification requirements for its program, and (2) the HOA had knowledge, from complaints received by other residents, of Zimmerman conducting patrols while armed, in violation of Neighborhood Watch standards (and common sense) and did not take actions to stop it.

The HOA’s liability is nothing compared to Zimmerman’s, and his best move would be to follow the HOA’s lead and settle the civil claims brought against him. But here’s to hoping that he doesn’t take the easy way out — and he’s forced to take the stand.

-Susan

Closing arguments haven’t been made yet, but after

Aside

Closing arguments haven’t been made yet, but after the close of Zimmerman’s defense, my prediction is a manslaughter conviction, by a slight margin, with acquittal the next most likely option, and Murder 2 trailing as the least likely result. Call it a 45/40/15 split.

As far as I am aware, Zimmerman’s defense didn’t present any testimony or evidence concerning how the fight started. Their entire story of the shooting starts about halfway through the fight — call it the “Zimmerman is a fat and slow Dudley Do-Right who was getting his butt kicked” defense. Which is kind of a double edged sword for Zimmerman, because it means his case didn’t introduce any evidence that Trayvon started the fight. It’s counting on the jury to focus on the fact that, at the moment of the shooting, Zimmerman may have genuinely been in fear for his life — while steering the jury away from closely examining his conflicting police statements. The defense’s story is that Zimmerman is bumbling and quixotic, but too inept to be culpable for any harm that resulted.

So if there’s a conviction, it’s more likely to be manslaughter. The state’s strongest case for Murder 2 was always being able to show that Zimmerman intentionally deceived investigators about how the fight started, and that he used his knowledge of self-defense law to deliberately craft a story about why he was justified in killing Trayvon. But since the defense opted to avoid all together Zimmerman’s statements about who threw the first punch, Zimmerman’s veracity didn’t really come into play. The jury could buy that Zimmerman is a reckless fool, who was oblivious of his own limitations and too in love with the idea of playing the hero, but the state wasn’t able to show Zimmerman as calculating and malicious.

In a nutshell: if the jury believes Rachel Jeantel testified truthfully about what she heard on the phone that night, Zimmerman will be convicted of manslaughter. If they’re unsure of what she heard, then the odds are much less likely.

-Susan