Emerald Robinson’s Stupid Lies

She peddles conclusions and innuendo pretending that they’re facts, and she’s doing that about NR.

One of the problems with the political moment we’re in is that there are powerful incentives for people to be stupid and dishonest. The ingredients of this imperfect storm include: a populist climate where nearly all institutions are distrusted, appeals to feelings of persecution will be richly rewarded, political principle for many people is measured by blind loyalty to (or hatred for) a particular personality, stirring controversy is valued regardless of whether there is sufficient evidence to support an allegation or clickbaity innuendo, and conspiracy is counted as courage. All of this leads to a kind of socially constructed garbage heap that will either attract flies, vermin, and other scavengers, or turn people into them.

Republicans, Don’t Fool Yourselves — Donald Trump Is in Serious Trouble

In response to the emerging evidence that Donald Trump directed and participated in the commission of federal crimes, all too many Republicans are wrongly comforting themselves with political deflection and strained legal argument. The political deflection is clear, though a bit bizarre. The recent wave of news about Trump’s porn payoffs is somehow evidence that investigators and critics are “shifting focus” from the Russia investigation to alleged campaign-finance violations.

It’s almost as if the campaign-finance news is taken as some sort of evidence that Mueller’s core investigation is faltering, so the media and investigators have to find something to use to attack Trump.

But the campaign-finance investigation has little to do with Mueller. It’s run by the U.S. Attorney’s Office for the Southern District of New York, and — besides — what do we want federal prosecutors to do when they discover evidence of unrelated crimes when engaged in a different investigation? Let bygones be bygones? Or refer that evidence to the proper jurisdiction — as Robert Mueller’s office did — for further investigation and potential prosecution?

.. The current wave of news reports is largely driven by court filings, and those court filings don’t represent a shift in law-enforcement focus on Trump but rather an arena of additional inquiry. The sad reality is that the Trump operation was a target-rich environment for any diligent investigator.

.. The Edwards prosecution failed not as a matter of law but of fact. The prosecution simply didn’t produce sufficient evidence to prove its case. Here’s Conway, Katyal, and Potter on the contrasts between the Edwards and Trump cases:

A key witness, Bunny [Mellon], was 101 years old and too frail to show up at trial. There were no written legal agreements providing money in exchange for silence, as there are in Trump’s case, and no threats by the mother of the child to go public immediately if the funds were not received. That’s why one juror told the media that the evidence wasn’t there to show even that Edwards intended the money to go to Rielle Hunter. In contrast, in a bombshell disclosure this week, the public learned that AMI, the parent corporation of the National Enquirer, is cooperating with the prosecution and has stated that the payments were made to influence the 2016 election. And even more worrisome for Trump, reports emerged Thursday that Trump was the third person in the very room where Cohen and David Pecker (the head of AMI) discussed the hush money payments — making it very hard for Trump to assert a non-campaign-related purpose

..So far, the best available evidence indicates that Trump’s commitments to Stormy Daniels didn’t exist “irrespective” of his campaign but rather because of his campaign. That’s Michael Cohen’s assertion. That’s AMI’s assertion. The affairs were relatively old — and so was the threat to his family — but the payments were new, rendered at a crucial time in a very close presidential contest.

.. Moreover, Cohen has indicated that prosecutors have a “substantial amount of information” that corroborates his testimony. And what is that information? Well, as the Wall Street Journal has already reported:

Mr. Trump was involved in or briefed on nearly every step of the agreements. He directed deals in phone calls and meetings with his self-described fixer, Michael Cohen, and others. The U.S. attorney’s office in Manhattan has gathered evidence of Mr. Trump’s participation in the transactions

Here is the fundamental reality, Republicans — there is already far more evidence of legal culpability against Trump than ever existed against Edwards, and a federal judge permitted the Edwards case to go to trial. It is true that, if Trump does eventually face indictment, a different judge may have a different view of the law, but if Trump is counting on a favorable legal ruling, he’s playing a dangerous game indeed.

.. Campaign-finance law is constructed from the ground up to require candidate transparency and guard against corruption. Thus, it is purposefully very hard for candidates to find a way to legally and quietly use substantial sums of money to cover up dirty deeds. In his essay, Smith argues, “Indeed, it is quite probable that many of those now baying for Trump’s scalp for illegal campaign contributions would be leading a charge to prosecute Trump for illegal ‘personal use’ of campaign funds had he made the payments from his campaign treasury.”

That’s likely correct — and evidence that campaign-finance law is working as intended. In other words, if you’re a campaign-finance lawyer, and a candidate asks your advice on how to buy the silence of a porn star and hide that payment entirely from the American people, your best response should be, “Have you considered not running for office?”

Weighing the Allegations against Brett Kavanaugh

Do not count me among those who would minimize this alleged assault. I went to a high school that had more than its share of drunken parties, and my classmates could do crazy and stupid things, but an act like this was beyond the pale. This isn’t “boys will be boys.” Actions have consequences, and it’s hardly unjust to tell a person that if he mistreated another human being like this — even a long time ago — he has to remain “merely” a judge on the D.C. Circuit Court of Appeals.

.. Given the totality of the evidence, I believe it is more likely than not that Bill Clinton committed rape and sexual harassment. I believe it is more likely than not that Donald Trump has committed sexual assault. I believe it is more likely than not that Roy Moore engaged in sexual misconduct with underage girls. But the evidence against Kavanaugh falls far short of the evidence arrayed against each of these men.

.. “The notes say four boys were involved, a discrepancy that Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.” Nor do the notes mention Kavanaugh’s name, even though her husband says Ford named Kavanaugh in the sessions.

Those are important discrepancies, and if six years ago she told the therapist four men and says two men now, that suggests that her memory of the event may be suspect.

.. Finally, there are no other allegations of sexual misconduct against Kavanaugh. If there’s one thing we’ve seen time and again, it’s that one allegation often triggers a cascade of additional claims. There seem to be precious few men who engage in serious sexual misconduct just once.

Corroboration Is Critical Because Memory Is Unreliable

When I was young and naive, I often thought that meant one party was telling truth (my client!), and the other side was full of dirty, vicious liars.

It didn’t take long for me to realize that more often than not both sides believed their own stories, and the longer the case dragged on, the more they hardened in their positions. That’s one reason why good lawyers, when interviewing clients, ask a few simple, key questions. “Did you take notes of these conversations?” “Did you tell anyone else this happened?” “Are there any emails or memos reflecting these agreements?” You’re constantly on a quest for the sword that slays the legal beast — corroborating evidence.

That’s one reason why I’ve always been dissatisfied with the declaration, “Women don’t lie about rape.” Sure, some small number of women do affirmatively lie, but as a general matter, the word “lie” is an odd fit for a real world where perceptions differ and memories are malleable. And, by the way, this isn’t “right-wing denialism,” it’s just scientific fact.

.. I argued that the right question to ask is whether it’s more likely than not that the accusations are true. And if there isn’t any corroboration or external evidence outside of Christine Ford’s three-decades-old recollections, that’s simply not sufficient basis for derailing the nomination of an outstanding jurist — no matter how fiercely they’re believed.