Let's Not Forget The Bigger Battle

The outcome of the November 3 election has little direct effect on an issue that's been simmering for much of the year, the arbitrary and inconsistent COVID restrictions imposed by the states, over which (so far) the president has little direct control. At my old blog, I covered the ongoing legal campaign to limit extra-legislative actions by state, county, and municipal authorities to override First Amendment rights of speech, assembly, and free exercise of religion using the largely manufactured COVID-19 "pandemic", for instance in this post from October 19.

The status of various cases moving through federal and state courts is very mixed. The most important cases are currently an opinion by Judge William S. Stickman IV in the federal Western District of Pennsylvania courts effectively declaring the Pennsylvania COVID restrictions unconstitutional. I covered this in my old blog, for instance here. HIs order is stayed pending appeal.

Another case is a ruling by a Sutter County, CA judge invalidating many California COVID restrictions based on the idea that the governor modified state laws in several areas without going to the legislature to change them. I covered this in the old blog here. This is also in limbo.

These issues have tended to fall off the radar during the election crisis. The COVID crisis, though, emerged under President Trump, but in his capacity as president, there was little he could do about it. The Tenth Amendment to the US Constitution reserves the rights not designated to the federal government in the Constitution to the states or the people. The ability to regulate local health rules seems to be generally subject to the Tenth Amendment and is delegated to state legislatures.

Thus as understood up to now, the president has no authority to impose national lockdowns or mask mandates, nor to override them in the states. The efforts to go to the US Supreme Court are an attempt to use that court's authority to declare various arbitrary or discriminatory state measures unconstitutional.

Among the most recent cases that are making their way to the Supreme Court are lawsuits by ultra-Orthodox synagogues in New York State, as well as the Roman Catholic Diocese of Brooklyn, intending to overturn COVID orders by Gov Cuomo that severely restrict attendance at "houses of worship" in order to reduce the number of COVID cases in specific areas. So far, all these cases have been rejected by lower federal courts, but in recent days, both the Roman Cathlic Diocese and the synagogues have now asked the US Supreme Court for an injunction to overturn those limits.

In the Diocese of Brooklyn case, Justice Breyer has ordered the state to file a response by Wednesday, Nov 18.

It does appear that more governors and other local authorities are recognizing that COVID measures are unpopular. Ohio Gov DeWine has announced a curfew, but not a fuil lockdown, apparently on the theory that people spread positive test results by going to bars and getting drunk. Califonria Gov Newsom has announced he's considering a similar measure, but again, not a full lockdown.

On Tuesday morning, Dr Fauci said on CNN "he 'can’t understand why there’s pushback' against the health orders. He argued the measures are important because 'they save lives.'”

Whatever. At least something's sinkng in. But this is going to be a long struggle, in the end more important than a single election.

"The Kraken Was Released Several Days Ago"???

Via Gateway Pundit, I see that Sidney Powell has tweeted, in response to someone urging her actually to release it, "The Kraken was released several days ago," with a quote from scripture. But a number of intelligent commentators have already been giving her the benefit of the doubt, expecting the real kraken would appear as she could release more evidence. Now, apparently what we see now is what we get.

I'm starting to lose confidence.

The video below from Robert Gruler, while again giving Powell the benefit of the doubt, is also increasingly skeptical:

At about 25:00, he makes an important point: a certain part of the Powell-Giuliani argument is that key Deep State actors in the FBI and CIA worked against Trump throughout his administration. The difficulty with this, according to Gruler, is that Trump was their boss. If he didn't like what they were doing, he could fire and replace any of them, as in fact he did sporadically. But the Trump team's argument is hinging more and more on the idea that, according to Powell, hundreds of thousands, even millions, of votes were stolen via a widespread conspiracy involving the voting machines.

And as Gruler and other commentators have pointed out, just recounts and audits simply won't be enough to reverse the results. You've got to establish a massive conspiracy, someting close to Jason Bourne level, involving CIA and FBI complicity.

As Gruler says, this isn't totally beyond the realm of possibility -- but there's a very short time to make this more credible than it currently is, and I'm losing confidence in Powell's ability to bring this off.

Sidney Powell Continues To Tease

As I've said, one of the best commentators on the surrent cycle is Robert Barnes. He appeared on the Viva Frei YouTube channel Sunday night to discuss developments, and they had a segment on Sidney Powell and the kraken:

Although Barnes has tweeted that he's now on Trump's electoral team, the indication he gives is that he's working in Georgia and hasn't spoken with Powell, and he doesn't know what the kraken specifically is. He and David, the Viva Frei host, agree that Powell is a prominent and reputable attorney who appears confident in the knowledge of circumstances she hasn't yet explanied very fully, but they also agree that time is running out.

In two appearences yesterday, Powell left me concerned that whatever legal atrategy she's following, it doesn't appear to be fully coherent. She went on Lou Dobbs to discuss an affadavit from a founder of Smartmatic that outlined a system capability of recording votes by individual voters, but changing them without an audit trail:

She went on Mark Levin to say essentially the same thing. One thing that concerns me is that she's veered away from Dominion to go into Smartmatic without explaining why she's doing this, or even if she fully understands that these are two different, and competing, products. Clearly both Dominion and Smartmatic are in crisis mode due to their portrayal in the current controversies. Smartmatic issued the following statement on its website:

• Smartmatic has never owned any shares or had any financial stake in Dominion Voting Systems. Smartmatic has never provided Dominion Voting Systems with any software, hardware or other technology. The two companies are competitors in the marketplace.
• Smartmatic does not have any ties to any governments or political parties in any country. It has never been owned, funded or backed by any government.

As David of Viva Frei has pointed out, affadavits themselves don't do much, and they can simply be contradicted by affadavits from the other side. If Powell has an affadavit from someone saying this is what Hugo Chavez wanted the product to do, that's interesting. But the question still remains of whether the product actually does that, separate from any capability of the Dominion system, and whether this function, assuming it exists, was actually employed in specific circumstances that can be proven in the US on the night of November 3-4.

This isn't a kraken, at least not yet. Since Powell is a competent attorney, she must certainly understand this. And time is running out.

Smartmatic's statement can certainly have been weasel-worded. It doesn't deny, for instance, that it has the capability to switch a voter's vote without keeping a record. And if this capability is in the system, we must assume there's at least the possibility that any totals collected by a Smartmatic system can be invalidated. This would probably be the end of both Smartmatic and Dominion as brands, so it's reasonable to see that they'd both be in crisis management mode.

(At minimum, large numbers of Dominion employees have deleted their Linkedin profiles since November 4, which should give an indication of current circumstances' impact on both companies, whether or not it's deserved. These companies may becme the next Enrons if things keep on this way, regarless of the election's outcome.)

However, Powell and the Trump election team need more than what's been disclosed, whatever happens to Dominion and Smartmatic. They implicitly recognize that to overturn the election, they will need to invalidate hundreds of thousands of votes. The only serious way to do this will be effectively to throw out large numbers of votes collected in both Dominion and Smartmatic machines.

At about 14:50 in the YouTube at the top of this post, Barnes says that unlike historical recounts, where about 1/100th of 1% of votes are changed, in 2020 Michigan recounts, 5-6% have been changed. This is better than a few hanging chads, but it's probably not enough by itself to change the overall result.

So, Just What Is Sidney Powell's Kraken?

My earlier post today discussed a pretty simple evidentiary question that might be used to establish that election data was unlawfully manipulated on Novembr 3-4, and it could conceivably be used to challenge election results during an audit or recount. I also assume the Trump election team is on top of this. But is it a kraken?

I'm wonderimng if there's more than meets the eye here. On Friday, Rep Louie Gohmert told Chris Salcedo on Newsmax that computer servers were seized by a US Army force in Frankfurt, Germany. The report suggested they were owned by a Spanish company, Scytl. Gohmert, Sidney Powell,, and attorney L Lin Wood all issued cryptic tweets referring to this alleged raid.

The raid, or at least specific details of it, were then fact-checked by corporate media and designated false. The AP said,

False. Both the Army and Scytl told The Associated Press the claim is not true. Furthermore, Scytl does not have offices or servers in Frankfurt, Germany.

Scytl itself announced, in part:

• We do not have servers or offices in Frankfurt
• The US army has not seized anything from Scytl in Barcelona, Frankfurt or anywhere else

However, this may be carefully weasel-worded. Two posts at the Gateway Pundit suggest that whatever the details, a server in frankfurt was seized, whoever owned it or used it. This post says, quoting a "source":

The US government, once they determined that this Dominion server was involved in switching votes, then the intelligence community began a search for the server and discovered that the server was in Germany. In order to get access to that server and have it available for use in a legal manner they had to have the State Department work in tandem with the Department of Justice. They had to request that the government of Germany cooperate in allowing this seizure of this server.

The appropriate documents required to affect that kind of seizure were put in place, signed off on, and it appears there was also US military support in this operation. The US military was not in the lead. But this helps explain why Esper was fired and Miller and Kash Patel were put in place — so that the military would not interfere with the operation in any way.

An article by Larry Johnson, a highly controversial former CIA and State Department analyst, also at Gateway Pundit, added further possible details:

The U.S. Army did not conduct a raid in Germany on either Sctyl or Dominion offices or servers. They are foreign nationals and we must operate in accordance with German law. Moreover, the U.S. Army does not have law enforcement powers with respect to such entities.

So what happened? I am reliably informed that a unit under the command of USEUCOM (i.e., United States European Command) did in fact conduct an operation to take control of computer servers. But these servers belong to the CIA, not Dominion or Sctyl. The U.S. military has full authority to do this because any CIA activity in the European theater is being conducted using military cover. In other words, CIA officers would be identified to the German government (and anyone else asking) as military employees or consultants.

. . . I also have confirmed what Jim Hoft reported the other night–the CIA’s Gina Haspel was not informed in advance of this operation. Based on this fact, I think it is correct that action was taken in Germany on territory under U.S. control and that a CIA facility was targeted.

I also have learned that FBI Director Christopher Wray was excluded from this operation.

So the debunking fact checks from corporate media are literally true, but apparently something did happen in Frankfurt, and something was seized and taken away, probably by the Justice Department. There's pobably a great deal else we don't yet know, and may never. But it sounds like we're in Jason Bourne territory.

And if there's just a back door to Dominion software, why did Sidney Powell say Gina Haspel should be fired immediately?

[It] makes me wonder if the CIA has used [Dominion] for its own benefit in different places. And why Gina Haspel is still there in the CIA is beyond my comprehension. She should be fired immediately.

Now, that would be a kraken.

Sidney Powell And The Kraken

Over the weekend, Sidney Powell, a prominent attorney best known as Gen Flynn's lawyer but currently working with the Trump election team, teased that she would "release the Kraken" regarding election fraud. On Sunday, she gave at least two interviews with additional details. The more informative was on OAN, as reported at Gateway Pundit. Referring to a system capability allegedly available with Dominion voting machines, she said

Sidney Powell: They can watch the voting real time. They can run a computer algorithm on it as needed to either flip votes, take votes out or alter the votes to make a candidate win… It’s massive criminal voter fraud, writ large across at least 29 states… It’s obvious the algorithm and the statistics that our experts are tracking out are batches of votes and when the votes changed. It’s going to blow the mind of everyone in this country when we can get it all together and can explain it with the affidavits and the experts that have come forward.

I spent most of my career in IT, often in documentation and security. To demonstrate this more conclusively, Powell would need, first, to show that this is a documented feature of the product. If so, this should be fairly easy to point out, since it would be a sales feature covered even in marketing brochures, and it would need to carry detailed specs and operating instructinos for use by operators during an election. There are potentially thousands of customers for such a system worldwide, and each customer would need multiple people on staff who would need know how to operate such a feature.

So I've got to assume that if this is true, there must be product manuals out there, even on line. (In this day and age, almost certainly on line.)

Second, the system must have audit trails that document when and where every vote was received and how it was counted. If indeed blocks of votes were switched, which is what Powell clearly alleges at OAN. the audit trail would report this event and who did it. Normal computer security controls limit an extremely powerful capability like switching blocks of votes to specified "superuser" IDs. You would normally want such a capability to be strictly limited to a small number of higher-level users, if only to prevent ordinary clerks from inadvertently switching votes.

As someone who's worked with such features in the real world, I recognize that not all organizaions are this careful, and low-level people can certainly do high-level things -- but the action will have been recorded, even if the actor isn't easily identifiable.

It does sound as if Powell has some familiarity with the product featues and how they operate. If the set of circumstances she outlines is credible, it ought to be possible to discover them pretty much as a routine matter in an election challenge or recount. If such actions were taken -- the scenario she outlines would suggest some person, signed on to the system, reviewed projected electoral results and then acted, using the documented system feature, to switch votes in order to change the projected results. This would have been done at an identified time, in an identified transaction, and probably by an identified user.

If that's the case, this would indeed be a Kraken. We'll have to see how this plays out. However, I saw a reference, which I'll need to track down, to the head of Trump's electoral team being a computer security specialist. Sounds reasonable, but all this needs to be filled in much more fully in coming days.

UPDATE: This interview on OAN indicates, in part, that the "superuser" type ID that can change results is widely available, which would be one of the first issues I would look at. But again, any action taken by a user should be recorded on an audit trail.

The 1824 Election And Plans B, C, D. . .

Robert Barnes's offhand remark anout the 1824 and 1876 elections brought me to think for rhe first time about actual US elections that weren't resolved in the Electoral College as outlined in Article II, Section 1 and the Twelfth Amendment to the US Constitution. The 1824 election is so far the only one that was resolved in the House as specified in the Twelfth Amendment. As I said yesterday, of the two candidates with the most votes, John Quincy Adams was selectd over Andrew Jackson, who went on to win the 1828 election.

All four of the candidates in 1824 were Democrats, by the way. Exactly what went on in the House is a different subject that I won't discuss here, except to say that 1824, being pre-Reconstruction, must not have been governed by the same behind-the-scenes forces, such as the post-Civil War industrial fortunes, that governed 1876-77.

But let's look at the bigger picture. In its first 100 years, the US had not two, but three elections that weren't resolved via the Article II,Section I straight electoral vote that's taught in civics class. These were `1824, 1860, and 1876. The proximate cause of the Civil War was the election of Abraham Lincoln in 1860, which the Confederate states didn't recognize. Thus each of those elections was resolved in a different way, which we might call Plans B, C, and D.

But then it took another 123 years, up to the election of 2000 and Bush v Gore, for a presidential election to be resolved in a way other than straight Article II, Section 1. The country weathered assassinations, scandals, depressions, and two world wars without the need to deviate from the civics class procedure, which had been a fairly regular thing by 1876. Why is this? The issue of slavery had been resolved ten years earlier via the Emancipation Proclamation, the Confederate surrender, and the Fourteenth Amendment, but apparently there was unfinished business.

And when the unfinished business was resolved, there was effective political stability for more than 100 years. Nothing perfect, mind you, but in the Ferdinand Lundberg paradigm, a plutocracy based in post-Civil War fortunes achieved a concursus bonorum that did impose order, especially over the immigrant population of the late 19th century. In fact, the consensus was also able to accommodate the Progressive movement of the early 20th century. To the Progressives, the Rockefellers were major villains, but they prospered throughout.

Lundberg, though, is anything but a systematic thinker. Exactly how this was done is still something of a mystery, and it's hard not to think the plutocracy was assisted by a highly capable and well-paid managerial class. Look at Henry Clay Folger, who, while president of Rockefeller's Standard Oil, was nevertheless just hired help in Lundberg's paradigm, but he became a major collector of Shakespeare manuscripts who endowed the Folger Shakespeare Library.

But the election of 2000 looks like it may have been a signal that the 1877 settlement that appears to have initiated the period of plutocratic stability that Lundberg discusses is reaching the end of its useful life, and however the 2020 election is resolved, many commentators have said that whichever candidate wins whatever process resolves the current impasse, half the country will come away believing the winner was not legitimate.

But after all, this will just be a continuation of the situation we saw in 2016, where a Deep State, acting on behalf of what Ferdinand Lundberg would insist was the post-Civil War consensus, refused to accept Trump's election, which itself was anomalous, since he won an electoral majority but lost the popular vote.

This suggests a realignment has been taking place, but it's nothing new. The Civil Rights movement, which began in the late 1940s and achieved great success in the 1950s, revived the Reconstruction agenda. In the 1970s, the South switched sides from Democrat to Republican and thus effectively accepted Reconstruction. The Ku Klux Klan, after all, barely exists now. That issue was finally settled.

What else is happening?

Rutherford B Hayes And The Compromise Of 1877

An offhand remark by Robert Barnes a week ago planted a seed in my thinking: he said the current contested election cycle should be compared to the contested elections of 1824 and 1876. Now, maybe I wasn't paying attention in American History class, but I don't think much was ever said about either of these elections. In the 1824 election, none of the candidates, led by John Quincy Adams and Andrew Jackson, achieved a majority in the Electoral College. Under the provisions of the Twelfth Amendment to the US Constitution, the election went to the House of Representatives, where Adams was selected. I may discuss this separately in greater depth.

The 1824 lection was the only contested election to go to the House. A similar disputed electoral result of 19 votes in 1876 was resolved by an ad hoc commission. Rutherford B Hayes, who had already been nominated as a compromise candidate by the Republicans in 1876, was awarded the 19 disputed votes, plus an additional vote from a disqualified Oregon elector, by the commission, in a deal called the Compromise of 1877. The selection of Hayes, a Republicasn, was part of a deal that includedd the removal of federal troops who were protecting Reconstruction governments in Southern states, which effectively ended Reconstruction and tacitly returned the South to Democrat control.

If I try to put this in the overall context of Ferdinand Lundberg's paradigm of post-Civil War US politics, I think it fits. The 1877 Compromise allowed the industrial revolution to extend into the Southern states, most immediately in the ability to exploit coal and lumber in the border states to benefit Northern capital and industry. This was accomplished with Northern capital under an agreement that allowed it to be done with Southern Democrat support.

The tensions this created for the freed African=American slaves and their descendants in a Southern society run behind the scenes by rich Northern liberals is brilliantly depicted in Ralph Ellison's novel Invisible Man. I think in broad outlines, Ferdinand Lundberg would agree that this was a major component of the political settlement that emerged in 1877. whereby Northern capital would tolerate segregation, and in fact enable poor conditions for African-Americans in Northern cities, in return for a free political hand elsewhere.

It occurs to me that another historical trend that was contemporary with the 1877 settlement was the rise of "new style" liberal Protestantism as expressed by figures like Henry Ward Beecher. This was also in many ways a project of post-Civil War capital, with the adoption of Gothic church architecture and the hihgly popular Anglo-Catholic style in the Episcopal Church.

The one area where I would take exception to Robert Barnes's insight, though, is that the 1824 and 1876 eections were disputed but resolved in peaceable settlements. But the 1860 election was also disputed. That was a very different matter, and it wasn't resolvd in a compromise. Abraham Lincoln was neither John Quincy Adams nor Rutherford B Hayes.