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Unread 2019-04-16, 04:24 PM   #1
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Default Bill Barr Can't Write a Summary 1989 ed.

https://www.justsecurity.org/63635/b...aily202&wpmm=1
Quote:
Barr’s Playbook: He Misled Congress When Omitting Parts of Justice Dep’t Memo in 1989

On Friday the thirteenth October 1989, by happenstance the same day as the “Black Friday” market crash, news leaked of a legal memo authored by William Barr. He was then serving as head of the Justice Department’s Office of Legal Counsel (OLC). It is highly uncommon for any OLC memo to make headlines. This one did because it was issued in “unusual secrecy” and concluded that the FBI could forcibly abduct people in other countries without the consent of the foreign state. The headline also noted the implication of the legal opinion at that moment in time. It appeared to pave the way for abducting Panama’s leader, Gen. Manuel Noriega.

Members of Congress asked to see the full legal opinion. Barr refused, but said he would provide an account that “summarizes the principal conclusions.” Sound familiar? In March 2019, when Attorney General Barr was handed Robert Mueller’s final report, he wrote that he would “summarize the principal conclusions” of the special counsel’s report for the public.

When Barr withheld the full OLC opinion in 1989 and said to trust his summary of the principal conclusions, Yale law school professor Harold Koh wrote that Barr’s position was “particularly egregious.” Congress also had no appetite for Barr’s stance, and eventually issued a subpoena to successfully wrench the full OLC opinion out of the Department.

What’s different from that struggle and the current struggle over the Mueller report is that we know how the one in 1989 eventually turned out.

When the OLC opinion was finally made public long after Barr left office, it was clear that Barr’s summary had failed to fully disclose the opinion’s principal conclusions. It is better to think of Barr’s summary as a redacted version of the full OLC opinion. That’s because the “summary” took the form of 13 pages of written testimony. The document was replete with quotations from court cases, legal citations, and the language of the OLC opinion itself. Despite its highly detailed analysis, this 13-page version omitted some of the most consequential and incendiary conclusions from the actual opinion. And there was evidently no justifiable reason for having withheld those parts from Congress or the public.

Public and Congressional pressure mounts

When first asked by reporters about the OLC opinion that Friday, Barr said he could not discuss any of its contents. “I just don’t discuss the work of the office of legal counsel,” he said. “The office … provides legal advice throughout the Administration and does it on a confidential basis.”

The idea that Barr and the administration would not even discuss the content of the opinion could not withstand public pressure. Barr’s stance was especially untenable because his OLC opinion reversed a prior OLC opinion (an unusual event), and the Justice Department had released that prior opinion in full to the public just four years earlier.

President George H.W. Bush was asked about the Barr legal opinion at a news conference on the day the story broke. “The FBI can go into Panama now?,” a reporter asked in connection with the legal opinion. Bush responded that he was “embarrassed” not to know about the OLC opinion. “I’ll have to get back to you with the answer,” the president said.

Within hours, Secretary of State James Baker tried to make some reassuring public comments about the content of the OLC opinion. “This is a very narrow legal opinion based on consideration only of domestic United States law.” Baker said. “It did not take into account international law, nor did it weigh the President’s constitutional responsibility to carry out the foreign policy of the United States.”

It’s not known whether Baker had first cleared his statement with the Justice Department as is often the case for such matters. But his description of the OLC opinion would turn out to be not just misleading, but false.

The Chair of the House Judiciary Committee’s subcommittee on civil and constitutional rights, Rep. Don Edwards, then wrote to the Attorney General requesting the opinion, but he was rebuffed. An assistant attorney general wrote back. “We are unable to provide you with a copy of the 1989 opinion because it is the established view of the Department of Justice that current legal advice by the Office of Legal Counsel is confidential,” she stated. But there was no categorical prohibition, as Barr himself would later admit in testifying before Congress. The assistant attorney general’s letter itself included one glaring counterexample. “I am enclosing a copy of the 1980 opinion,” she wrote, and she noted that the Department had released the 1980 opinion to the public in 1985.

So why not release the 1989 opinion? Was there something to hide?

Barr provides a “redacted opinion” to Congress

On the morning of Nov. 8, 1989, Barr came to Congress to testify before Rep. Edwards’ subcommittee. Some of the events that unfolded also bear a remarkable resemblance to Barr’s handling of the Mueller report to date.

First, Barr started out by saying that the history of internal Justice Department rules was a basis for not handing over the full opinion to Congress. “Chairman. Since its inception, the Office of Legal Counsel’s opinions have been treated as confidential,” Barr said.

That statement was misleading or false, and Chairman Edwards knew it.

Edwards quickly pointed out that the Department had released a compendium of opinions for the general public, including the 1980 one that Barr’s secret opinion reversed. “Up until 1985 you published them, and I have it in front of me—‘Opinions of the Office of Legal Counsel’—the previous opinion.”

Barr retreated. “It has been the long established policy of OLC that except in very exceptional circumstances, the opinions must remain confidential,” Barr replied. The reference to “very exceptional circumstances” backtracked from what Barr had just said and what the letter sent to Rep. Edwards by the assistant attorney general had claimed.

But even the assertion that OLC opinions were released only in “very exceptional circumstances” could not withstand scrutiny. The Justice Department had shared OLC opinions with Congress on many occasions during the 1980s, as a letter by Rep. Edwards to the Justice Department later detailed.

Barr then pointed out his willingness to provide Congress with “our conclusions and our reasoning.” This was the 13-page written testimony which contained a detailed recounting of the views expressed in the OLC opinion. Chairman Edwards complained that Barr had violated the rules of the House by submitting his written testimony only that same morning of the hearing, rather than 48 hours in advance. Barr’s timing meant that members of the committee and their staff were not well equipped to analyze or question the OLC’s analysis. But at least they had the OLC’s views in writing. Or did they?

Barr’s description of the OLC’s views included that as a matter of domestic law the President has the authority to authorize actions by the FBI in foreign countries in violation of customary international law.

Without the benefit of the OLC opinion, Professor Koh explained how Barr could be hiding important matters by asking Congress and the public to trust just the 13-page version. Koh wrote:

“Barr’s continuing refusal to release the 1989 opinion left outsiders with no way to tell whether it rested on factual assumptions that did not apply to the earlier situation, which part of the earlier opinion had not been overruled, or whether the overruling opinion contained nuances, subtleties, or exceptions that Barr’s summary in testimony simply omitted.”

Koh’s words proved prescient.

What Barr left out of his report to Congress

I am not the first to notice that Barr’s testimony omitted parts of the OLC opinion that would have earned the Justice Department scorn from the halls of Congress, legal experts, and the public.

Over one and a half years after his testimony, Congress finally subpoenaed Barr’s 1989 opinion. Another House Judiciary subcommittee issued the subpoena on July 25, 1991. The administration first resisted, but within a week agreed that members of Congress could see the full opinion. That same month, the Washington Post’s Michael Isikoff obtained a copy of the OLC opinion. The Clinton administration, within its first year in office, then published the OLC opinion in 1993 making it publicly available for the first time.

Omission 1: President’s authority to violate the U.N. Charter

Isikoff was drawn to a major issue that Barr had not disclosed in his testimony. The 1989 opinion asserted that the President could violate the United Nations Charter because such actions are “fundamentally political questions.”

That proposition is a very difficult one to sustain, and as Brian Finucane and Marty Lederman have explained, Barr was wrong. The 1989 opinion ignored the President’s constitutional duty to “take care” that US laws, including ratified treaties, be faithfully executed. And the opinion conflated the so-called political question doctrine, which is about whether courts can review an executive branch action, with the question whether an executive branch action is authorized or legal.

What’s more important for our purposes is not whether the 1989 opinion was wrong on this central point, but the fact that Barr failed to disclose this “principal conclusion” to Congress.

There was a reason Isikoff considered the conclusion about the U.N. Charter newsworthy. That’s because it had not been known before. The leading analysis of the Barr opinion is in a forthcoming article in Cornell Law Review by Finucane. He observes, “The members of the subcommittee appear to have been unaware of the opinion’s treatment of the U.N. Charter and the witnesses did not volunteer this information during the hearing.”

Professor Jeanne Woods, in a 1996 law review article in Boston University International Law Journal, also observed the large discrepancy between Barr’s 13-page testimony and what it failed to disclose. “Barr’s congressional testimony attempted to gloss over the broad legal and policy changes that his written opinion advocated.… A careful analysis of the published opinion, and the reasoning underlying it, however, reveals the depth of its deviation from accepted norms,” Professor Woods wrote.

Omission 2: Presumption that acts of Congress comply with international law

Woods also noted that the OLC opinion failed to properly apply the so-called “Charming Betsy” method for interpreting statutes. That canon of statutory construction comes from an 1804 decision, Murray v. The Schooner Charming Betsy, in which the Supreme Court stated, “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” In other words, Congress should be presumed to authorize only actions that are consistent with U.S. obligations under international law. As Professor Curtis Bradley has written, since 1804 “this canon of construction has become an important component of the legal regime defining the U.S. relationship with international law. It is applied regularly by the Supreme Court and lower federal courts, and it is enshrined in the black-letter-law provisions of the influential Restatement (Third) of the Foreign Relations Law of the United States.”

Barr’s opinion not only failed to apply the Charming Betsy presumption in favor of international law; the opinion applied what might be called a “reverse Charming Betsy.” Barr had reasoned that “in the absence of an explicit restriction” concerning international law, the congressional statute should be read to authorize the executive branch to violate international law. “Because, as part of his law enforcement powers, the President has the inherent authority to override customary international law, it must be presumed that Congress intended to grant the President’s instrumentality the authority to act in contravention of international law when directed to do so,” the opinion stated (emphasis added).

That part of the OLC’s analysis has not withstood the test of time. Indeed, there was good reason to keep it buried.

Omission 3: International law on abductions in foreign countries

Finally, Barr’s testimony failed to inform Congress that the 1989 opinion discussed international law.

Barr’s written testimony said that the opinion “is strictly a legal analysis of the FBI’s authority, as a matter of domestic law, to conduct extraterritorial arrests of individuals for violations of U.S. law.” During the hearing he added that “the opinion did not address … how specific treaties would apply in a given context.” The State Department’s legal adviser who appeared alongside Barr supported this characterization of the opinion by saying:

“The Office of Legal Counsel, as the office within the Department of Justice responsible for articulating the Executive Branch view of domestic law, recently issued an opinion concerning the FBI’s domestic legal authority to conduct arrests abroad without host country consent. Mr. Barr has summarized its conclusions for you. As Mr. Barr has indicated, that opinion addressed a narrow question — the domestic legal authority to make such arrests…. My role today is to address issues not discussed in the OLC opinion — the international law and foreign policy implications of a nonconsensual arrest in a foreign country.”

But the OLC opinion had addressed some questions of international law and how a specific treaty—the U.N. Charter—might apply in such contexts. The 1980 opinion, which the 1989 one reversed, included strong statements about the international legal prohibition on abductions in other countries without the state’s consent. In analyzing Article 2(4) of the UN Charter, the 1980 opinion quoted from a famous United Nations Security Council resolution which condemned the abduction of Adolf Eichmann in Argentina by Israeli forces. The 1980 OLC opinion stated, “Commentators have construed this action to be a definitive construction of the United Nations Charter as proscribing forcible abduction in the absence of acquiescence by the asylum state.”

The OLC’s 1989 opinion took a very different view. It stated, “The text of Article 2(4) does not prohibit extraterritorial law enforcement activities, and we question whether Article 2(4) should be construed as generally addressing these activities.” The opinion also engaged in what many legal experts would consider controversial if not clearly wrong claims about international law. As one example, the 1989 opinion stated, “because sovereignty over territory derives not from the possession of legal title, but from the reality of effective control, logic would suggest there would be no violation of international law in exercising law enforcement activity in foreign territory over which no state exercises effective control.” The fact that the opinion had to resort to such a claim of “logic,” rather than jurisprudence or the practice and legal views of states, indicated its shallowness.

In fairness to Barr, these statements of international law were not the principal conclusions of the opinion. And, once again, it is not so relevant to our purposes whether these statements of law were wrong. What’s relevant is that Barr represented to Congress in his written and oral testimony that the OLC opinion did not address these legal issues, even though it did.

* * *

In the final analysis, Barr’s efforts in 1989 did not serve the Justice Department well. He had long left government service when the OLC opinion was finally made public. The true content of the opinion, given what Barr told the American people and testified before Congress, remains much to the discredit of the Attorney General.
basically Bill Barr has already shown himself willing to omit important details from his summaries to Congress (aka lie to Congress which I'm sure means the "Liar! Liar! Pants on Fire!" signs are right around the corner from the GOP)...
even if you're 100% certain that Trump is innocent of collusion and obstruction, you should be supporting the full report's release to Congress and a classified information-redacted version released to the public. anything less and you're saying that its okay for someone who has a long history of lying to Congress and issuing pardons to cover up crimes to write your history simply because it makes you feel better about the person you're supporting. but know that you're a complete hypocrite if you decide that you want to know what the President is up to in 2021 when it will be the other party in control.
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Unread 2019-04-16, 05:12 PM   #2
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You notice none of this ^^ was reported on before he was appointed. They were hoping he would support the Mueller false narrative.

Before Barr releases his report the Dems are all "He's the greatest, has high morale's etc."

After he releases his report and it proclaims Trumps innocence "He's a liar, He is covering for Trump, he is partisan etc."

I'm waiting for his investigation into the intelligence agencies spying on Trump and seeing if some of them go to jail.

I want to see HRC twisting in the wind with threats of jail time, not likely though.
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Unread 2019-04-16, 11:16 PM   #3
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but know that you're a complete hypocrite if you decide that you want to know what the President is up to in 2021 when it will be the other party in control.
They will never see this. You can show them saying one thing when it comes to their guy and the complete opposite for a liberal and they just wont even acknowledge it or you'll get the typical DIY response full of psychological defense mechanisms that do everything but actually address your points.

I've dealt with this my whole life and I know its hard to wrap your head around the fact that someone would have zero interest in whats actually true no matter how obvious it is but thats exactly what this Trump phenomena is all about. It took me until my 20s to understand this mindset and my mind was blown. It never even occurred to me that was even an option. The whole time I kept thinking I just wasn't convincing enough. Not only do these people hate the truth they will hate you for trying to show it to them and they will dig their heels in even further. Their entire identity depends on maintaining this delusion. Without it they have no idea who or what they are.
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Unread 2019-04-17, 07:23 AM   #4
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but know that you're a complete hypocrite if you decide that you want to know what the President is up to in 2021 when it will be the other party in control.
Or didn't need to know what the president was up to in 2012, yet clambering for all information now.
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Unread 2019-04-17, 07:41 AM   #5
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LOL, "Why didnt you write about the guy who wasnt attorney general up until this year before he was attorney general?" "Why didnt you care about Trump being a piece of shit before he became president?" As if anyone was going to care about someone being a piece of human garbage when they were nothing but a sideshow on reality TV.

Trumpians will do any form of mental gymnastics it takes to be "right," whatever that means. Even if they currently had his cock in their mouth they'd be mumbling, "and that is why this doesnt mean I am gay."
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Unread 2019-04-17, 10:24 AM   #6
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You notice none of this ^^ was reported on before he was appointed. They were hoping he would support the Mueller false narrative.

Before Barr releases his report the Dems are all "He's the greatest, has high morale's etc."

After he releases his report and it proclaims Trumps innocence "He's a liar, He is covering for Trump, he is partisan etc."
lol, what fantasy land up your ass did you pull this narrative out of?

- his confirmation was 54 to 45 (guess which party all 45 came from...)
- his confirmation hearings focused on the completely bullshit, partisan, and unsolicited memo he wrote to the Justice Dept saying a President can't obstruct justice
- since apparently you have no idea what Democrats did or said publicly before his confirmation here's a link to his confirmation hearing: https://www.c-span.org/video/?456626...mation-hearing . you should educate yourself or stop talking about it.

and here's a cliffs for you in case you need to get back to memorizing Fox News talking points:
https://www.vox.com/2019/1/15/181842...mation-hearing


edit* apologies for this being a bit harsh, I'm just having a shit morning and I'm tired of having to strip away the bullshit hurricane that is (typically) required to be a Trump supporter these days. feel free to say that Democrats are hacks, wrong, etc but at least know what they actually said and did.
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Unread 2019-04-17, 10:31 AM   #7
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LOL, "Why didnt you write about the guy who wasnt attorney general up until this year before he was attorney general?" "Why didnt you care about Trump being a piece of shit before he became president?" As if anyone was going to care about someone being a piece of human garbage when they were nothing but a sideshow on reality TV.

Trumpians will do any form of mental gymnastics it takes to be "right," whatever that means. Even if they currently had his cock in their mouth they'd be mumbling, "and that is why this doesnt mean I am gay."
Something went wrong. Please make sure you added the video correctly.

Video URL: http://www.youtube.com/watch?v=gdAIQHBDf0Y

They'll watch this and not see the irony in it AT ALL.
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Unread 2019-04-17, 02:04 PM   #8
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They'll watch this and not see the irony in it AT ALL.
Its funny because now my dad is all bleating about "respect for the office" when people criticize trump but was all about birtherism, bitching about obama shucking and jiving and wearing cream suits.

What it all really, always, boils down to is they cant just come out and say, "Well, at least he isnt a nig..."
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Unread 2019-04-17, 04:47 PM   #9
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Something went wrong. Please make sure you added the video correctly.

Video URL: http://www.youtube.com/watch?v=gdAIQHBDf0Y

They'll watch this and not see the irony in it AT ALL.
That's like saying if the fake media had been reporting on Trump like they did with Obama, all the adulations etc. Trumps approval numbers would be in the 60% range.
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Unread 2019-04-17, 04:48 PM   #10
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What it all really, always, boils down to is they cant just come out and say, "Well, at least he isnt a nig..."
There is the racist left again, it's all about race to them.
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Unread 2019-04-17, 05:41 PM   #11
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Its funny because now my dad is all bleating about "respect for the office" when people criticize trump but was all about birtherism, bitching about obama shucking and jiving and wearing cream suits.

What it all really, always, boils down to is they cant just come out and say, "Well, at least he isnt a nig..."
Ya know I didn't want to believe this for the longest time and while of course there were absolutely legitimate things to not like about Obama the amount of vitriol I saw thrown at that man was unprecedented at the time and completely unwarranted for the most part. I eventually had to come to grips with the race component especially with this Trump thing because its so blatantly obvious now. Their brains couldn't handle that an intelligent liberal black man was the President of their white conservative Christian country so they had to come up with every reason why that wasn't reality to the point of delegitimizing his American citizenship. Thats not only what sore losers they are but how racist as well. He was also gay, married to a transgendered man and his children weren't really his. I swear this entire election has just been one giant expose on their blatant hypocrisy and an unveiling of how big of complete frauds they are.

They hated that man with such a passion I would see a scowl on my fathers face every time he was just on the television. I found it disturbing. People can think I hate Trump like that but the truth is sometimes I'll watch videos of him and laugh my ass off because he said/did something that was legitimately funny because I don't even blame him for this situation. He's just an instinct machine reacting to the people around him. Calling Kim "Little Rocket Man" at the UN is probably one of the funniest things I have ever seen in my life in a sort of Michael Scott kind of way and having a good laugh at it helps me forget for a moment that this is actually the reality we live in now.
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Unread 2019-04-17, 05:52 PM   #12
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That's like saying if the fake media had been reporting on Trump like they did with Obama, all the adulations etc. Trumps approval numbers would be in the 60% range.
I legitimately can't make any sense out of what you're trying to say or what point you're trying to make here. Can you explain more please? I'm willing to consider its just me and not the fact that this video showed you too much truth about yourself that it broke your brain.
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Unread 2019-04-17, 06:41 PM   #13
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There is the racist left again, it's all about race to them.
It's because it's your true motivation.
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Unread 2019-04-17, 08:42 PM   #14
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It's because it's your true motivation.

Ha!

Next I’ll probably hear that I hate Hilary because she’s a woman.

Too funny.
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Unread 2019-04-18, 08:33 AM   #15
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Ha!

Next I’ll probably hear that I hate Hilary because she’s a woman.

Too funny.
Not speaking to your situation, but there is a large number of men out there who believe a woman is not fit to be in a leadership role because they're genetically inferior, it's not in their nature, they should be in a kitchen supporting their man, etc.

And that does impact their views and how they vote. If you deny that you're just burying your head in the sand and ignoring reality.
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Unread 2019-04-18, 08:43 AM   #16
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Not speaking to your situation, but there is a large number of men out there who believe a woman is not fit to be in a leadership role because they're genetically inferior, it's not in their nature, they should be in a kitchen supporting their man, etc.

And that does impact their views and how they vote. If you deny that you're just burying your head in the sand and ignoring reality.

Oh I don’t deny that racism and sexism are alive and well in this county, I’m just not as widespread as those like Ryan would want you to believe.

Maybe I just need to get woke though
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Unread 2019-04-18, 10:37 AM   #17
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Theres literally no other explanation for the insane hypocrisy between how Trump gets treated vs how Trump supporters treated Obama. Its seriously mental illness levels of delusion and I only have to use 2 videos to show this to be overwhelmingly so. And no, no one here is quite that bad save maybe DIY although I'd hesitate to straight call him racist. Its more like there's "his" group and everyone else is the "other", regardless of skin color. He doesn't like whatever demonized version of what he calls "liberals" that he's made up in his head more than he cares about whether someone is black or white.
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Unread 2019-04-18, 11:03 AM   #18
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BRB.

Got pickup my white hood and cloak from the dry cleaner...
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Unread 2019-04-18, 12:12 PM   #19
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BRB.
Got pickup my white hood and cloak from the dry cleaner...
thing is, you support a racist with racist immigration policies... no, that doesn't mean you're in the KKK but at the least you're basically the Vichy equivalent of racism...

the fact that Trump is pretty blatantly racist (for 2019) and thinks its appropriate to intentionally separate brown families and keep kids in cages doesn't disqualify him from your support? you're Vichy...
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Unread 2019-04-18, 12:22 PM   #20
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rather than go down that rabbit hole that has no end and no one gets smarter or more informed...

here's the rest of the sentence that Barr edited down in his "non-summary" summation of the principles of the Mueller Report:
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The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
for whatever reason the bolded part got cut off from Barr's original letter... strange. if I didn't know any better I might just think the Attorney General is a partisan stooge acting like Roy Cohn on behalf of a troubled President...

the report also mentioned that the fact that the Trump campaign lied repeatedly regarding Russian contacts and numerous communications had be intentionally deleted and could not be recovered had hindered their ability to get a full accounting.
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The Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report...
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Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ”all men are created equal.” We now practically read it “all men are created equal, except negroes” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and Catholics.” When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocricy. - Lincoln

Last edited by phreakdna; 2019-04-18 at 12:29 PM..
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Unread 2019-04-18, 12:28 PM   #21
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thing is, you support a racist with racist immigration policies... no, that doesn't mean you're in the KKK but at the least you're basically the Vichy equivalent of racism...

the fact that Trump is pretty blatantly racist (for 2019) and thinks its appropriate to intentionally separate brown families and keep kids in cages doesn't disqualify him from your support? you're Vichy...

Gimme a minute to google what Vichy means and I’ll decide what to say then...
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Unread 2019-04-18, 02:48 PM   #22
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BRB.

Got pickup my white hood and cloak from the dry cleaner...
I don't recall ever feeling like you had irrational hatred for Obama and even said that I didn't think the
racist label applied to anyone here. But it most certainly does to a large portion of Trump supporters. Its built right into his platform. Trump is the avatar for the middle class white man who thinks he's the real victim of society and all those lazy freeloading minorities and liberals who are lucky they're even allowed here in the first place want to ruin his country and take all of his precious tax dollars all because they hate America, white people and Jesus himself.
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Unread 2019-04-19, 06:37 PM   #23
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