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Has U.S. Democracy Been Trumped?


Winstonm

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Did anyone find a source of election night coverage that they liked? I watched PBS. I had a hard time getting a feel for how Dems were doing compared to expectations as the results were coming in. Presumably it's not too hard to aggregate precinct results as they come in and compare to corresponding aggregate precinct projections to give a sense of how many races are playing out as expected. Maybe they did that and I missed it as I was not paying full attention. I enjoyed some of the commentary but most of it was pretty blah.

 

I turn to 538 for anything election-related. It's a blog livestream rather than a bunch of talking heads, so you sometimes have to refresh for text updates. But it's by far my favorite for quantitative analysis as well as interpretation of results in real time. Some really insightful commentary imo.

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Irrelevant. By proposing solutions to real problems, the Democrats force Dennison and the GOP to take a stand, either with or against. Either way, the Democrats win.

 

The reality is that nothing much will get accomplished after 1-3-2019 other than oversight.

 

It is just as important - maybe more so - for the Democrats to keep their own base motivated. Seeing good governance repeatedly shot down by selfish GOP action would go a long way toward that goal.

Like the dozens of votes that the House took under Obama to repeal Obamacare, knowing that they were just symbolic gestures because the Senate would never pass it?

 

Is this going to be the country's fate whenever there's a divided Congress?

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Like the dozens of votes that the House took under Obama to repeal Obamacare, knowing that they were just symbolic gestures because the Senate would never pass it?

 

Is this going to be the country's fate whenever there's a divided Congress?

 

This country's fate is more likely Rome's. As Ben Franklin is said to have responded to the question of what type government had been formed, a republic, if you can keep it.

 

A massive challenge, one that perhaps cannot be overcome, is that the constitutional imperative of the Senate was to act as a check on majority rule; what it has become is a majority of the minority. The only way to change this is to change the constitution, and that will never be done as long as it is held in religious-like rapture as infallible.

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From A Two-Party Texas and Other Takeaways From the Cruz-O’Rourke Race by Manny Fernandez at NYT:

 

EL PASO — Texas didn’t turn blue Tuesday night. It didn’t turn purple. But it is pinker now — largely because of Beto O’Rourke.

 

...The midterm election in Texas was unlike any the state has seen in decades. Here are five takeaways as Republicans and Democrats try to understand what happened.

 

Mr. O’Rourke lost on Tuesday by the narrowest margin in years for a Democrat running for statewide office. His Republican opponent, Senator Ted Cruz, won by a little more than two percentage points — a difference of about 200,000 votes, according to state elections data. So even Mr. O’Rourke’s defeat had tinges of victory for Democrats, helping to rekindle a notion that many had believed was years away from reviving in Texas: the two-party state.

 

Republican rule of Texas remains intact but weakened, as Mr. O’Rourke’s high-profile, high-energy campaign helped deliver victories for a number of Democrats in down-ballot races.

 

His coattails helped Democrats flip 12 State House seats, two State Senate seats and two congressional seats, and Democrats managed to win the largest county in the state — Houston’s Harris County. Not a single Republican county-level elected official was left standing there, including the county’s top elected official, County Judge Ed Emmett, who had helped lead the region through Hurricane Harvey. Mr. O’Rourke carried much of urban Texas and scored surprising victories in battleground suburbs like Fort Bend and Williamson Counties — though that success was ultimately undermined by losses in rural West Texas, East Texas and the Panhandle.

 

“This was the first statewide election since 2002 when the outcome of the statewide contests was not a completely foregone conclusion before the polls closed on Election Day,” said Mark P. Jones, a political-science professor at Rice University in Houston. “Beto’s success should serve as a wake-up call for scores of Texas Republicans that they can no longer count on winning simply by having an ‘R’ next to their name on the ballot.”

 

Before the election, Mr. Cruz called Fort Worth’s Tarrant County “the biggest, reddest county in the biggest, reddest state.” Tarrant County is tied to the mythic Texas cattle country, so friendly to conservatives that Republicans have regularly hosted their state conventions in Fort Worth. For years, Tarrant County was the red exception to the blue rule: The biggest urban counties in Texas are all blue — around Austin, Houston, San Antonio and Dallas — but Tarrant is red. Tarrant, over the years, went for Mitt Romney, Rick Perry, Greg Abbott, Donald Trump — and also Mr. Cruz, who crushed his Democratic opponent in 2012 in the county by 16 percentage points.

 

But Mr. O’Rourke did what Hillary Clinton and many other Democrats could not — he won Tarrant County, by a statistical hair: 49.89 percent of the vote compared with Mr. Cruz’s 49.27 percent. And Mr. O’Rourke’s supporters had a hand in defeating a Republican state senator and longtime Cruz ally in the county, State Senator Konni Burton, who lost to the Democrat, Beverly Powell. (It was the State Senate seat that previously had been held by another Democrat, Wendy Davis.)

 

Post-election on Wednesday, there wasn’t much celebrating going on at the headquarters of the Tarrant County Republican Party, in a nondescript industrial office complex in Fort Worth. The chairman, Darl Easton, a retired Air Force officer, sat at a large desk, empty except for a laptop and a red MAGA hat.

 

He was on the phone with one of his precinct chairmen. “Did you go to the watch party last night?” Mr. Easton asked, telling the chairman moments later, “Oh my gosh, pretty sad down there. Wasn’t good, that’s for sure.”

 

Afterward, he seemed determined to put a good face on things. “I think we’ll bounce back,” he said. “It’s a warning bell to us to re-energize our base.”

 

...Republicans have long claimed the pop culture of Texas as their own — the barbecue joints and country music stars and pickup trucks. Mr. O’Rourke embraced those Texas symbols and reclaimed them for Democrats, jamming with Willie Nelson, steering his San Antonio-built Toyota pickup truck through rural Texas and air-drumming post-debate in the drive-through lane at Whataburger. It used to be an awkward counterculture stretch to be a Texas Democrat. He made it cool.

 

...Mr. O’Rourke failed to turn a well-funded, well-publicized and well-run campaign for Senate into a win. Now, strategists are asking a question: If he couldn’t do it, then who can? And if not now, then when? One of the other Texas Democratic stars — Julian Castro, the Obama-era secretary of housing and urban development — may be booked up in 2020, as he is seriously considering a run for president.

 

Could even bigger things also be in store for Mr. O’Rourke? He is that rare Texas Democrat whom even Republicans generally have nice things to say about. In the wake of Tuesday’s election, an unlikely voice seemed to be urging Mr. O’Rourke to consider running for president in 2020, even though he has said he’s not interested. That voice belonged to Mr. Roe, Mr. Cruz’s chief strategist.

 

“I don’t predict Democratic politics, but the fervent following that he has nationally, no one else compares to him on their side,” Mr. Roe told reporters at the Houston hotel ballroom where Mr. Cruz held his victory party. “No one does. He is in a league of his own in the Democratic Party, and if he doesn’t use that to run for president, I don’t know what he’d do with it.”

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Interesting that now a new voice has been added to this claim - Kellyanne Conway's husband George.

 

But Professor Calabresi and the president were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very, very significant consequence today.

 

It means that President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

 

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom President Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

 

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

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We had a relatively strong year for Democrats (with voters energized by resistance to Trump), a very unlikeable Republican incumbent (even many in his own party can't stand Ted Cruz, and Trump himself was on record saying all manner of negative things about him from the 2016 Republican primary), a Democratic donor base giving crazy amounts of money, and a dynamic Democratic candidate. And he still couldn't win in Texas. The time might come when demographic change makes Texas winnable for Dems, but it's gotta be pretty far away on this evidence. And I don't really see how losing a Senate run (in a year where a lot of fundamentals are favorable to your party and against an opponent like Cruz) makes for a good presidential run.

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I hope that is true. I don't know constitutional law unfortunately, but it would be pretty consistent with this administration if Whitaker tried to shut the whole thing down and Mueller kept trucking along, simply adding Whitaker to the list of suspects.

 

edit: sniped

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We had a relatively strong year for Democrats (with voters energized by resistance to Trump), a very unlikeable Republican incumbent (even many in his own party can't stand Ted Cruz, and Trump himself was on record saying all manner of negative things about him from the 2016 Republican primary), a Democratic donor base giving crazy amounts of money, and a dynamic Democratic candidate. And he still couldn't win in Texas. The time might come when demographic change makes Texas winnable for Dems, but it's gotta be pretty far away on this evidence. And I don't really see how losing a Senate run (in a year where a lot of fundamentals are favorable to your party and against an opponent like Cruz) makes for a good presidential run.

 

This is a bad post.

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I hope that is true. I don't know constitutional law unfortunately, but it would be pretty consistent with this administration if Whitaker tried to shut the whole thing down and Mueller kept trucking along, simply adding Whitaker to the list of suspects.

 

edit: sniped

 

From what I have read and heard, the issue is whether or not Sessions resigned or was fired. On that point, Sessions really stuck it to Dennison with his letter start of On your request...

 

Also, I just read that Sessions asked to stay until the end of the week but Kelly told him he had to be out that same day.

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From what I have read and heard, the issue is whether or not Sessions resigned or was fired. On that point, Sessions really stuck it to Dennison with his letter start of On your request...

 

Also, I just read that Sessions asked to stay until the end of the week but Kelly told him he had to be out that same day.

 

Who is in charge of interpreting and enforcing the issue?

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Who is in charge of interpreting and enforcing the issue?

 

I don't know. I suppose if it came to it Mueller could file a lawsuit challenging the Whitaker's authority. I suppose any Democratic legislator could challenge the appointment on legal grounds but I don't know for sure.

 

Here's useful article from Slate that also has a link to Lawfare in the article: https://slate.com/news-and-politics/2018/11/matthew-whitaker-jeff-sessions-replacement-illegal.html

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From Jonathan Bernstein at Bloomberg:

 

Even with everything going on, I still can’t let Donald Trump’s Wednesday news conference go. It was … something.

 

I will give credit to Trump for holding a post-election news conference. He’s now doing these events regularly, and that’s a good thing. The downside is that he used the occasion to demonstrate once again that he’s simply not fit for the office

 

The president showed he is fully committed to calling the Republican defeat in the midterms a glorious victory. Spin is one thing; saying that a party that lost its House majority, six or seven governorships and more than 300 state legislative seats had actually won something “very close to complete victory” is either insulting to his audience or delusional or both.

 

He also mocked, individually and by name, some of the Republicans who lost on Tuesday.

 

Then, when asked about his rhetoric and white nationalists, he snapped repeatedly that it was a “racist question.”

 

When asked about the increase in anti-Semitic incidents over the last two years, Trump insisted that he was a great friend of Israel, and when asked a second time, he talked about jobs and trade relations with China. For whatever reason, he chose not to say anything comforting to Jews who are still mourning the attacks in Pittsburgh (and as far as I know, he never has mentioned the killing of two black people in Jeffersontown, Kentucky, on Oct. 24).

 

He repeatedly insulted reporters and media organizations, once again calling CNN an “enemy of the people.” Later, CNN’s Jim Acosta was barred from the White House.

 

He repeated a series of fabrications about why he won’t release his tax returns, as every other president has done for years.

 

And those were the coherent parts.

 

Trump talked about cutting deals with Nancy Pelosi and the new House Democratic majority, at one point sounding as if he was willing to give them whatever they wanted as long as they didn’t conduct normal oversight of his administration. He also threatened, in the news conference and in an earlier tweet, to investigate the Democrats if they investigated him. It didn’t seem to occur to him that if he is aware of any wrongdoing by the Democrats that he should be reporting it, not bargaining with it; nor does it occur to him that threatening to damage the nation in order to protect himself and his administration from oversight is inexcusable.

 

Indeed, he seems to feel that any routine congressional oversight would be inherently offensive, just as he apparently thinks any tough questions or accurate but damaging reporting is inherently offensive.

 

At least, that’s what I think he was saying. In fact, the president was difficult to follow because he simply doesn’t make any sense half the time. Part of that is his commitment to both never backing down on anything and to declaring everything a win. So when pressed about whether some of his campaign rhetoric about the Democrats was too harsh, he strongly denied it and confirmed he believes they are out to ruin the nation, but (because the elections were a win!) somehow he could also maintain that it’s great for him that the Democrats have a House majority because now they’ll be able to work together to get things done.

 

When it comes to actual policy, the less said, the better. Trump was asked one specific question about health care, and good luck to anyone who tries to figure out what his answer meant. He pretty clearly has just as little idea what he’s talking about on most major policy issues as he did when he first started running for president. On Jamal Khashoggi, waivers on Iranian sanctions, North Korea and Russia, he either ducked the questions with non sequiturs or just babbled.

 

Most presidents really do grow in office, or they get better at the job over time. Bill Clinton was awful at presidenting in his first year but eventually got to be pretty good at it. George W. Bush never really mastered the job, but he did improve over time; he certainly put in serious effort to be up to speed on policy details despite entering office with an unusually weak grasp of major policy areas. I’d like to find some sign that Trump is finally getting the hang of this, but I’m just not seeing it. It’s enough to make you think he may just not be capable of the job.

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The legal case against the Whitaker appointment grows: Axios reports:

 

The bottom line: Even John Yoo, a law professor at the University of California-Berkeley who helped the George W. Bush administration draft its expansive claims to executive power, says the Whitaker appointment may be out of line.

 

"The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the Attorney General is a principal officer. Therefore, Whittaker cannot serve as acting Attorney General despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way."

— John Yoo in an email

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Who is in charge of interpreting and enforcing the issue?

 

I found this:https://www.justsecurity.org/61386/quick-primer-legality-appointing-matthew-whitaker-acting-attorney-general-whitakers-power-influence-russia-investigations/

 

Q4. Who would have standing to challenge the legality of the Whitaker appointment? And when might a court rule on it?

 

I haven’t yet thought through this question sufficiently, but I assume that anyone who suffers an “injury in fact” by virtue of something Whitaker does would have Article III standing to challenge his appointment in court, at least for purposes of enjoining that action. And as I noted above, almost all of DOJ’s actions are taken pursuant to authorities Congress has assigned to the Attorney General. For example, all litigation in which the United States, an agency, or officer thereof is a party or is interested “is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. § 516. Indeed, if recollection serves, the AG himself technically signs many DOJ legal pleadings, such as briefs. The AG also issues regulations, approves certain seeking certain criminal sentences, and much else. Anyone adversely affected by any of these actions might challenge the legality of Whitaker’s appointment.

 

As I wrote earlier, however, it might be several months, if ever, before any court, let alone the Supreme Court, adjudicates the questions; it’s far from certain that any such challenge would be successful; and in the meantime Whitaker could have a significant impact at DOJ, and on the Mueller investigation in particular.

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From the NYT:

 

The Trump administration relied on a misleadingly edited video from a contributor to the conspiracy site Infowars to help justify removing the credentials of CNN’s chief White House correspondent, a striking escalation in President Trump’s broadsides against the press.

 

Sarah Huckabee Sanders, the White House press secretary, falsely accused Jim Acosta, the CNN journalist, of “placing his hands on a young woman,” a White House intern, as Mr. Acosta asked questions that irked the president during a formal news conference on Wednesday.

 

Television footage showed that Mr. Acosta and the intern made brief, benign contact — “Pardon me, ma’am,” the correspondent said — as she tried to take a microphone away from him at Mr. Trump’s behest

.

 

I'm sure this is fake news as the WH did not ban Acosta for his actions but for failure to follow WH guidelines to "grab 'em by the _____".

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We had a relatively strong year for Democrats (with voters energized by resistance to Trump), a very unlikeable Republican incumbent (even many in his own party can't stand Ted Cruz, and Trump himself was on record saying all manner of negative things about him from the 2016 Republican primary), a Democratic donor base giving crazy amounts of money, and a dynamic Democratic candidate. And he still couldn't win in Texas. The time might come when demographic change makes Texas winnable for Dems, but it's gotta be pretty far away on this evidence. And I don't really see how losing a Senate run (in a year where a lot of fundamentals are favorable to your party and against an opponent like Cruz) makes for a good presidential run.

 

Dare I say that Beto is a young charismatic candidate who could end up generating the enthusiasm of an Obama or a JFK. In any case, Texas is a deeply red state where state wide races are almost never competitive. Beto came within 2 1/2% of beating Cruz, in 2012, Cruz won by 16%. The governor's race went red by 13+% this election after previously winning by 20+% in 2014. There's a majority core of Republican voters who are going to vote Republican no matter who is running. I'm sure you noticed that Republicans elected a dead guy (brothel owner Dennis Hof) for Nevada legislature, avowed white supremacist Steve King for the house, indicted Duncan Hunter for the house, indicted Chris Collins for the house, indicted Ken Paxton for Texas Attorney General (by 4%).

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Dare I say that Beto is a young charismatic candidate who could end up generating the enthusiasm of an Obama or a JFK. In any case, Texas is a deeply red state where state wide races are almost never competitive. Beto came within 2 1/2% of beating Cruz, in 2012, Cruz won by 16%. The governor's race went red by 13+% this election after previously winning by 20+% in 2014. There's a majority core of Republican voters who are going to vote Republican no matter who is running. I'm sure you noticed that Republicans elected a dead guy (brothel owner Dennis Hof) for Nevada legislature, avowed white supremacist Steve King for the house, indicted Duncan Hunter for the house, indicted Chris Collins for the house, indicted Ken Paxton for Texas Attorney General (by 4%).

 

this is a good post.

 

thank you both for making this so clear.

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In my opinion, one of the big problems in the US is the phenomenon of “failing upwards.” Someone loses an election or does badly in a management position, and somehow the result is that they get promoted to a more powerful position. The “someone” in these situations is almost always a white male (and “charismatic” is a common adjective for such men).

 

I would’ve hoped the Democratic Party would be less susceptible to this but the hype around a presidential run for Beto makes me doubt it. Stacey Abrams also appears to have come up just short in a run for statewide office in a very red state, as does Andrew Gillum. In fact their races were even closer (still pending recounts)! I don’t hear anyone talking them up as White House contenders. Surely it’s just because Beto is more “charismatic” (which might or might not be a synonym for white male).

 

If we’re looking for a white male “savior” we might take a look at Sherrod Brown (who won in increasingly red Ohio, by a landslide). We also have a lot of exciting young politicians with a bit more diversity (like Kamala Harris for example). Sure winning in Texas is hard for a Democrat but I just don’t get the degree of hype.

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In my opinion, one of the big problems in the US is the phenomenon of “failing upwards.” Someone loses an election or does badly in a management position, and somehow the result is that they get promoted to a more powerful position. The “someone” in these situations is almost always a white male (and “charismatic” is a common adjective for such men).

 

I would’ve hoped the Democratic Party would be less susceptible to this but the hype around a presidential run for Beto makes me doubt it. Stacey Abrams also appears to have come up just short in a run for statewide office in a very red state, as does Andrew Gillum. In fact their races were even closer (still pending recounts)! I don’t hear anyone talking them up as White House contenders. Surely it’s just because Beto is more “charismatic” (which might or might not be a synonym for white male).

 

If we’re looking for a white male “savior” we might take a look at Sherrod Brown (who won in increasingly red Ohio, by a landslide). We also have a lot of exciting young politicians with a bit more diversity (like Kamala Harris for example). Sure winning in Texas is hard for a Democrat but I just don’t get the degree of hype.

Heroes with feet of clay. The nature of the environment provides the impetus and influence to corrupt. Skeletons in closets are invariably used to influence or control and that eventually accentuates this tendency of "do as you are told, Elliot Spitzer, or we will take you down..." Mr. Deeds went to Washington but unlike James Stewart, they never end well.

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From Bess Levin at Vanity Fair:

 

hen Donald Trump was running for president several eons ago, he claimed in an interview following the departure of noted sleazebag Roger Stone that once elected, he would surround himself “only with the best and most serious people,” or “top-of-the-line professionals.” Since then, we’ve learned that the president’s definition of “top-of-the-line” roughly translates to individuals who think taxpayer money should be viewed as a slush fund for their own personal enrichment; people who don’t know the purpose of the agencies they’ve been appointed to run; slumlords; and alleged spousal abusers. And, in the case of his new acting attorney general, “top-of-the-line professionals” means people who were paid to promote fraud, and who intimidated victims with threats of prison time and bodily harm.

 

We speak, of course, of Matthew Whitaker, the interim attorney general appointed by Trump after he fired Jeff Sessions for not ending the Russia investigation. It turns out that in addition to his work as a United States attorney and private-practice lawyer, in 2014 Whitaker started serving on the advisory board of a company called World Patent Marketing, which bilked inventors out of millions they thought were going toward patents and licensing deals, and was shut down by the Federal Trade Commission last year. As well as serving in an advisory capacity, Whitaker appeared in promotional videos and photos in which he reviewed invention ideas with W.P.M. owner Scott Cooper, and a December 2014 press release quotes him as saying, “As a former U.S. attorney, I would only align myself with a first-class organization. World Patent Marketing goes beyond making statements about doing business ‘ethically’ and translates them into action.”

 

But Whitaker’s most crucial role was arguably in using his prior work as a federal prosecutor to intimidate people when they realized the company was a scam. According to e-mails filed by the F.T.C, in August 2015 Whitaker allegedly responded to a customer who had complained about World Patent Marketing to the Better Business Bureau by telling them, “I am assuming you understand that there could be serious civil and criminal consequences for you. Understand that we take threats like this quite seriously.” Another victim, who tried to get a refund, received an e-mail from a company lawyer who told her, “Since you used e-mail to make your threats, you would be subject to a federal extortion charge, which carries a term of imprisonment of up to two years and potential criminal fines. See 18 U.S.C. ii 875(d).” The pièce de résistance, though, would have to be the correspondence sent to unhappy customers suggesting they keep their grievances to themselves, lest an ex-member of the Israeli Special Ops show up on their doorstep:

 

The F.T.C. complaint adds that “Defendants also cultivate a threatening atmosphere” by sending its victims e-mails describing a company “security team” of “all ex-Israeli Special Ops and trained in Krav Maga, one of the most deadly of the martial arts.” The company e-mails reported, “The World Patent Marketing Security Team are the kind of guys who are trained to knockout first and ask questions later.”

As a reminder, all of these threats were sent by a company that, per the F.T.C., was supposed to be patenting and promoting customers’ products, but in reality “provided almost no service in return,” lost consumers about $26 million, and, in some cases, caused people to lose their life savings. (According to The Wall Street Journal, World Patent Marketing and Cooper settled earlier this year, agreed not to promote any other patent-marketing services, and turned over a Miami Beach waterfront property to the U.S. government.)

 

Meanwhile, Whitaker was reportedly paid $9,375 in advisory fees between 2014 and 2016, and was owed an additional $7,500 at the time the F.T.C. took action to seize the company.

Talk about promoting upwards.

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