§.175.10 appears to be about business records that are false in a monetary sense, rather than in a mislabeled sense, and which further a financial fraud, not an election fraud.

This becomes more obvious when you go back and read §.175.05, falsifying business records in the second degree, the prerequisite for §.175.10, falsifying business records in the first degree.

Why would a “falsified business record” be a misdemeanor, but get elevated to a felony if its intended to commit a second crime? Because both laws are aimed at “cooking the books“, ie financial fraud.

Neither statute is designed to criminalize the mere mislabeling of inflows or outflows that actually took place in the amounts claimed, that were “mislabeled” for non-financial reasons, like to hide an affair.

The legislature’s intent here is rather easy to divine: What crime would you falsify a business record to commit? A financial fraud, obviously.

When we examine the allegations in Bragg’s case, we see that the amounts were accurate.

Even if you wanted to argue §.175.10 still covers “mislabeled”, but otherwise accurate, business records, under an expansive interpretation of the law, you would still have to acknowledge that Michael Cohen really did submit legal invoices. And the accountants in charge of Trump Org.’s books were likely not aware these were not legitimate.

So what Bragg is really alleging is a conspiracy between Trump and Cohen to submit false legal invoices.

The amounts in the entries were accurate, the labels were at least superficially accurate, and none of it was in the service of a greater financial fraud.

It’s also instructive to compare §.175.10 with FECA and the Clinton Campaign’s fine for labeling payments to Fusion GPS as legal fees to Marc Elias.  FECA, unlike §.175.10 really is concerned with the labeling of expenses (on FEC reports) because FECA is about election transparency. §.175.10 is not about Election, or Business, transparency.  It’s about financial fraud.

Bragg has misinterpreted §.175.10 in a way similar to how Jack Smith is currently accused of misinterpreting § 1512(C)(2) in the Fisher appeal.

I’m personally indifferent to the policy impact of the HOME Ordinance and HOME Phase 2 Ordinance. However, it strikes me that there currently exists a failure to communicate between Texas Courts’ recent rulings in the Acuna v City of Austin lawsuit, and the City’s interpretations of those rulings. There seems to be a state of denial happening that prevents the City from grasping the real takeaway: that Texas Law, as currently constructed, simply does not allow for Code Revisions the way major cities in other states routinely carry them out.

In Texas, any proposed change to the restrictions imposed by city zoning on a piece of property, however it’s done, results in the owner of that property, and every owner of every piece of property within 200 feet, getting the opportunity to protest the change in writing. If 20% of those eligible to protest do, it’s what’s called a Valid Petition. It then forces the vote in question to be a 3/4ths super majority to pass, rather than a simple majority.

This becomes a major snag in any attempt at Land Code Revision. Why? Because it’s not one piece of property being affected, in the case of the HOME Ordinance and HOME Phase 2 Ordinance, it’s an estimated 174,000. Every one of those 174,000 property owners has the right to protest. The City has the legal duty to formally collect those protests, as well as anyone 200 feet away, and do the math calculation to see if it is greater than 20%, before voting. (And then do that over again, 173,999 more times.)

Texas cities can’t simply skip that step because they have already taken the temperature of the council, and worked out ahead of time that the vote will likely be a super majority. It doesn’t work retroactively like that. These are official city procedures, allowed only by, and exclusively governed by, the State of Texas.

Every parcel affected by any zoning action must be determined to have or not have a “valid petition” before that zoning action can be voted on. Even if you accept that the onus of filing such protests is on the property owners, it’s clearly required by law that the City accept them formally, and do the math to determine if they reach the 20% threshold, before a vote can be held.

Obviously, this is not feasible with 174,000 parcels. To ask “What does a valid petition mean in a city-wide Code Rewriting Ordinance?” is like a Zen kōan akin to “What is the sound of one hand clapping?” The mind shuts down when contemplating it.

From Final Judgement in Acuna v City of Austin (D-1-GN-19- 008617), we read:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Defendants be, and hereby are, commanded to desist and refrain from: Refusing to recognize and accept Plaintiffs’ protest rights pursuant to Texas Local Government Code § 211.006(d) as to any change in the zoning regulations… in order for such change to be effective…”

When we look up the cited Section 211.006(d), we read: “If a proposed change to a regulation or boundary is protested in accordance with this subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths of all members of the governing body. The protest must be written and signed by the owners of at least 20 percent of either: the area of the lots or land covered by the proposed change; or the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area.”

If there was any question that maybe a city-wide Code Rewrite was somehow accounted for in other parts of Chapter 211, a look at the Appeal Ruling quickly disabuses us of that notion: “The statute requires compliance with these provisions for certain zoning “changes,” but not for the initial adoption of zoning ordinances. The City Parties maintain that a comprehensive revision of zoning ordinances is more like the initial adoption of city-wide zoning, and thus, those provisions should not apply. A number of property owners disagreed and filed this suit. The trial court agreed with the property owners and rendered declaratory and injunctive relief. The City Parties appealed, and the appeal was transferred to this court. We conclude that a comprehensive revision “changes” existing zoning ordinances, and thus, the statute’s written-notice and protest provisions apply.”

The truth is Texas Law in Chapter 211 does not appear to contemplate Code Rewrites, and interpreting one section or another to assess their legality is more art than science. 211.007 appears aimed at larger cities with established zoning classifications. While the City thought it could be clever by changing the definition of what each classification allowed, without technically changing anyone’s nominal classification, this just caused their action to be reviewed under 211.006, which appears aimed at less sophisticated zoning schemes in small towns, and which is clearly about standard single parcel rezoning, not city-wide “code rewrites”. Nevertheless, the language in 211.006 is clear enough that three courts have ruled it applies to Code Rewrites.

In my opinion, it’s not great policy for the City to just hand wave away these problems and pass the ordinances they want, and hope no one sues. Because all it takes, right now, I think, is for someone to sue over HOME or the upcoming HOME Phase 2, and the courts are going to rule in their favor. And it will be Austin’s fourth loss in a row on this issue. Sending notice to the entire city telling them to comment on online forums and sign up for speaking time at City Hall isn’t going to cut it with Texas Judges. Even if the City includes the tag line “This is your chance to protest!”. That’s legal wishcasting.

The City of Austin has two legally sound options, it seems to me:

Create HOME and HOME 2 as new zoning classifications “on paper” and require that every property owner that wishes to take advantage of it rezone one at a time through the traditional process of Notice>Protest>Vote. (like DB90)

or

Wait until the next legislative session and pressure the legislature to address this hole in Chapter 211.

IS THERE REALLY A “BUT FOR” TEST IN THE TIRZ LAW?

The forthcoming ruling in Bill Bunch’s South Central Waterfront TIRZ lawsuit, which could come down any day now, promises to be a watershed moment for the political struggle over the last few years between the emerging New Austin and the Old.

Bill Bunch has just filed another lawsuit against yet another Endeavor project, this time challenging the zoning for the Borden Plant redevelopment on the Eastside.  There’s no indication he plans to slow down.  All this comes on the heels of recent big wins by Bunch’s compatriot Doug Becker, successfully striking down the City’s 2019 land use rewrite and several piecemeal follow-ups (although the HOME Ordinance has so far gone unchallenged).

Meanwhile the Related Cos. have announced plans to build their own modern mixed-use mini-downtown in the SCWF-TIRZ.  If the SCWF-TIRZ is enjoined, will this project be in jeopardy as well?

If so, a Bunch victory in the SCWF-TIRZ case could force a public reckoning over the direction of Austin growth and development.  A Bunch defeat, however, could go a long way towards moving past this municipal existential crisis.

At present Bunch has the stronger argument in the TIRZ case, because the City Attorney has essentially agreed with his reading of Section 311 of the Texas Tax Code, while asking the Court for “deference” to City determinations.  However, “deference” to City decision making has not been a winning argument in recent lawsuits.

Interestingly, though, the City may not need such deference to be granted, after all.  Section 311 is a very interesting part of the Texas Tax Code, that, when read with Bunch’s and the City’s interpretation in mind, appears to be logically incoherent. This raises the question of whether their interpretation might be incorrect. If it can be shown that a different interpretation makes the entire section become coherent, the very premise of their interpretation could be questioned.

Consider the following two statements:

A) “You may attend tonight’s outdoor concert if you have a ticket”

“However,”

B) “We may cancel tonight’s outdoor concert if it begins to thunder”.

May and if are doing very different things in those two statements.  Now, consider the half sentence in Section 311 on which all of Bunch’s (and the City’s) argument rests:

“(a) The governing body … may designate a contiguous geographic area in the county …. a reinvestment zone to promote development or redevelopment of the area if the governing body determines that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.”

My Clintonian parsing of this language may seem absurd, but remember that the City Attorney’s argument, partly, rests on the meaning of “solely” and “reasonably foreseeable future”.  And it’s not clear how those words’ interpretations even help her argument, to be honest.

The history of the TIRZ law, which was originally open-ended, then struck down as unconstitutional over this very issue that Bunch is suing over, and then reinstated with a new narrower focus, certainly has led everyone to assume that A) is the proper reading of the crucial half sentence.  Additionally, the Attorney General at the time issued an opinion letter making clear that’s how he interpreted it.

The problem is, under the A) interpretation (the supposed “but for” test) the Section as a whole becomes incoherent.  Let me explain why.

Two sections after 311.003: “PROCEDURE FOR CREATING REINVESTMENT ZONE”, from which the “but for” half sentence comes, comes section 311.005: “CRITERIA FOR REINVESTMENT ZONE”.

It sets out four possible avenues for an area to qualify as a TIRZ:

(a) To be designated as a reinvestment zone, an area must:

(1) substantially arrest or impair the sound growth of the municipality or county designating the zone, retard the provision of housing accommodations, or constitute an economic or social liability and be a menace to the public health, safety, morals, or welfare in its present condition and use because of the presence of:

(A) a substantial number of substandard, slum, deteriorated, or deteriorating structures;

(B) the predominance of defective or inadequate sidewalk or street layout;

(C) faulty lot layout in relation to size, adequacy, accessibility, or usefulness;

(D) unsanitary or unsafe conditions;

(E) the deterioration of site or other improvements;

(F) tax or special assessment delinquency exceeding the fair value of the land;

(G) defective or unusual conditions of title;

(H) conditions that endanger life or property by fire or other cause; or

(I) structures, other than single-family residential structures, less than 10 percent of the square footage of which has been used for commercial, industrial, or residential purposes during the preceding 12 years, if the municipality has a population of 100,000 or more;

(2) be predominantly open or undeveloped and, because of obsolete platting, deterioration of structures or site improvements, or other factors, substantially impair or arrest the sound growth of the municipality or county;

(3) be in a federally assisted new community located in the municipality or county or in an area immediately adjacent to a federally assisted new community; or

(4) be an area described in a petition requesting that the area be designated as a reinvestment zone, if the petition is submitted to the governing body of the municipality or county by the owners of property constituting at least 50 percent of the appraised value of the property in the area according to the most recent certified appraisal roll for the county in which the area is located.

The grammatic ambiguity at the heart of the half-sentence in the Procedural section could have been easily cleared up by making the “but for” test (a determination of developer disinterest) the sole criteria listed here. Instead, this section lays out four different options, of which the City need only choose one, and none of which are a finding or determination of developer disinterest absent a TIRZ.

If these four options were all conditions that would necessarily cause developer disinterest, that would reinforce the A) “but for” reading of the half-sentence, even despite its lack of literal inclusion in 311.005.  However, you will notice that only the first two criteria relate to conditions that might possibly cause a lack of developer interest. The final, fourth option, a petition of property owners, has no obvious connection to a lack of Developer interest.

Additionally, the question must be asked: why would the fourth option, a petition of property owners, be included at all, if that alone was insufficient, absent a finding of Developer disinterest?  How can it be argued there is a “but for” test required, when Section 311.005 does not mention it as any of the four potential criteria, while including an option that has nothing necessarily to do with it?

Even more perplexing is Section 311.004: “CONTENTS OF REINVESTMENT ZONE ORDINANCE OR ORDER”.  The contents it requires are as follows:

(1) describe the boundaries of the zone with sufficient definiteness to identify with ordinary and reasonable certainty the territory included in the zone;

(2) create a board of directors for the zone and specify the number of directors of the board as provided by Section 311.009 or 311.0091, as applicable;

(3) provide that the zone take effect immediately upon passage of the ordinance or order;

(4) provide a date for termination of the zone;

(5) assign a name to the zone for identification, with the first zone created by a municipality or county designated as “Reinvestment Zone Number One, City (or Town,  as applicable) of (name of municipality),” or “Reinvestment Zone Number One, (name of county) County,” as applicable, and subsequently created zones assigned names in the same form numbered consecutively in the order of their creation;

(6) establish a tax increment fund for the zone; and

(7) contain findings that:

(A) improvements in the zone will significantly enhance the value of all the taxable real property in the zone and will be of general benefit to the municipality or county; and

(B) the area meets the requirements of Section 311.005.

(b) For purposes of complying with Subsection (a)(7)(A), the ordinance or order is not required to identify the specific parcels of real property to be enhanced in value.

(c) To designate a reinvestment zone under Section 311.005(a)(4), the governing  body of a municipality or county must specify in the ordinance or order that the  reinvestment zone is designated under that section.

You will notice that nowhere, again, in this section is it required to include in the Ordinance a “but for” determination (finding of Developer disinterest).  Even more shockingly, we are given an all new “test”: whether the development contemplated will “significantly enhance the value of all the taxable real property in the zone and will be of general benefit to the municipality or county”, a reality no one is contesting when it comes to the development plans for the SCWFD.  Finally, notice the strange special treatment the petition option is given.

So, to recap: we have the grammatic ambiguity of the “but for” half-sentence; we have the vanishing of it from anywhere else in the bill, including a no-show in the Criteria section; we have criteria that only partially relate to a finding of developer disinterest, together with ones that seemingly have no connection to it; and then we have a detailed listing of what should be in the Ordinance that again excludes any mention of developer disinterest, and which seemingly sets up an all new, lower threshold, test.

Now consider the entire section with the B) grammatical interpretation. To paraphrase: “A City may (decide to) designate an area a TIRZ to stimulate development if it determines development is otherwise unlikely to occur.”  Under this interpretation the “but for” test becomes merely an explanation of why the Legislature is granting this tax sequestering power, that was previously ruled unconstitutional, to cities.  It’s encouraging its use for this purpose, without shackling the City’s flexibility.  And it’s placing this in the Procedural section, alongside binary rules such as holding public meetings and giving proper notice. The section then proceeds to lay out rules the city must follow in order to use the TIRZ tool, but not strictly along the lines of a determination of developer disinterest. Instead, they are more flexible rules, that track generally with the “but for” concept, but which clearly allow for some leeway and flexibility.  Section 311 is now logically coherent, using this interpretation. And the SCWF-TIRZ Ordinance is compliant.

Does Texas Law Ever Allow a Code Rewrite?
https://ombudsman4truth.home.blog/2024/04/10/is-the-city-of-austin-following-the-law/

Is there realy a “But For” test in the TIRZ law?  https://ombudsman4truth.home.blog/2024/02/28/is-there-really-a-but-for-test/

Did Doug Becker outsmart himself in zoning fight?

https://ombudsman4truth.home.blog/2023/12/21/did-doug-becker-outsmart-himself-in-zoning-fight/

Did the City just admit the HOME Ordinance is illegal?

https://ombudsman4truth.home.blog/2024/01/30/did-the-city-just-admit-the-home-ordinance-is-illegal/

Is there a loophole in the Texas Tax Code the city could use in it’s fight with SOS over the Statesman TIRZ?

https://ombudsman4truth.home.blog/2024/01/31/is-there-a-loophole-in-the-texas-tax-code-the-city-could-use-in-its-right-with-sos-over-the-statesman-tirz/

In December of 2022 the Austin City Council established the SCWF-TIRZ, a Tax Increment Reinvestment Zone covering the abandoned Austin American-Statesman lot and other contiguous properties.

This would save the developer Endeavor an estimated $500M in infrastructure costs. In exchange, Endeavor is planning to build a sparkling new south bank downtown, which the City highly desires.

Tax Increment Reinvestment Zones are a tool allowed to cities by State legislation, provided the city follows the rules laid out in Chapter 311 of the Texas Tax Code.

On April 24th, 2023 a group led by Bill Bunch filed a lawsuit against the city council members involved in the 2022 decision, seeking to enjoin their action, and revoke the TIRZ designation from the area.

In the lawsuit, Bunch argued that the City misused the TIRZ tool as a sweetheart tax giveaway to a wealthy developer, when it was created by the Texas Legislature, he argues, only as a way to entice development where, “but for” the TIRZ, no developer would be interested in developing. To the contrary, he argues, rightly, that the Statesman lot is the most highly prized piece of land in all of Texas for redevelopment.

While there is some evidence for Bunch’s reading of the code, it’s up for debate, in my view. And there appears to be, buried in the code, a loophole the City and Endeavor could avail themselves of if they chose to do so.

The code is written in a strange and somewhat sloppy manner, the best example, and most important in this case, being the almost throw-off half-sentence in section 003(a). Under the headline “Procedure for Creating Reinvestment Zone”, It states:

(a) The governing body of a county by order may designate a
contiguous geographic area in the county …. a reinvestment zone to promote development or redevelopment of the area if the governing body determines that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.

Bunch argues that this sets up a “but for” test that any area must pass to be legally granted TIRZ status.

The problem with this reading is that this section is outlining merely the “Procedure” for creating a TIRZ.

Two sections later, 311.005 is explicitly headlined “CRITERIA FOR REINVESTMENT ZONE”.

This section sets out four possible avenues for an area to qualify as a TIRZ:

1) the area is “blighted”,

2) the area is undeveloped,

3) the area is in a “federally assisted new community”, “or”

4) half of the property owners, by virtue of appraisal value, sign a petition seeking TIRZ status.

If that half-sentence was to be the preeminent test of whether a city could designate a zone a TIRZ, the authors forgot to include it in this fifth section titled “CRITERIA”.

Indeed, Section 311.004, titled “CONTENTS OF REINVESTMENT ZONE ORDINANCE OR ORDER” says the following:

(B) the area meets the requirements of Section 311.005.

(c) To designate a reinvestment zone under Section 311.005(a)(4), the governing body of a municipality or county must specify in the ordinance or order that the reinvestment zone is designated under that section.

This leads one to wonder whether the petition option is meant as a sort of loophole, circumventing not only the need to find the area to be “blighted” in Section 4, but also the supposed “but for test” of Section 3.

Why the authors of this tax code would include the explosive “but for” half-sentence in section 3 and then not include it in Section 5 is hard to reconcile.

Additionally, the question must be asked, why would the option of a petition be included at all, if that alone was insufficient, absent a “but for” finding?

If Section 5 laid out four unique conditions that could be the underlying reasons behind a “but for” finding, that might have made some sense. But only the first 2 criteria relate to that. 3 and 4 have nothing to do with a “but for” finding. Rather instead they seem to be a type of work around.

Lastly, it’s important to note the “or” at the end of the third criteria, clearly suggesting the City Council need only pick 1 of these 4, which also raises more questions about the meaning of the half-sentence in Section 3.

A plausible explanation is that the half-sentence in Section 3 is not meant to be a matter of law, but an expository explanation of why a City Council may want to designate an area a TIRZ. ie. “if a City decides to designate an area a TIRZ to encourage development there, here’s the procedure, and here are the criteria necessary.”

Alternatively, the petition option may have been added in to the law later in the drafting process , somewhat upending the overall logic of the bill.

The first criteria suggested in the code, a finding of blight, is what the City Council went with in its original decree in December of 2022. That unfortunately played right in to Bunch’s hands, because it reinforced the reading of the code that an area must be blighted, and would not be enticing to developers, but for the creation of a TIRZ.

If the City continues to argue the case on these grounds, I think Bunch will have a strong chance of prevailing, and putting the TIRZ on hold, and with it likely the current plans to redevelop the Statesman lot. (Endeavor has threatened to walk away from the project entirely if Bunch succeeds).

A more foolproof approach by the City would have been to utilize the fourth criteria, a petition by half of the property owners by virtue of appraisal value.

Whether it’s too late now is an open question. But the possibility may exist for the City to withdraw the original TIRZ designation, give Bunch a pyrrhic victory, and then receive the petition.

The City Council could then re-designate the area a TIRZ, this time on the basis of the petition alone, and state that clearly in the Ordinance, as instructed by Section 4.

Several quotes from a presentation by a city attorney to the City Council, as transcribed in this article from the Austin Monitor, appear to indirectly suggest that the correct procedure was not followed in passing the HOME Ordinance.

In her presentation about re-adopting three ordinances that were recently struck down by a state judge, the city attorney was asked by the Mayor, and other affordability advocate council members, what procedure the city needed to follow this time to not get sued again and have these same ordinances overturned a second time.

She outlined the following procedure:

1) create new zoning classifications “on paper”,
2) let property owners request to be rezoned to the new classifications,
3) go through normal process of notice>protest>valid petition>super majority vote on a parcel by parcel basis.

This begs the question: If that is what is required to re-establish the density bonus zoning districts, under the law and under the 3 rulings in Acuna v City of Austin, why was that not the process for adopting the HOME Ordinance?

How was the city able to simply alter the definitions of existing zoning classifications with a single 9-2 vote?

Relevant portions of her transcribed answers from the article:

Assistant City Attorney Patricia Link told committee members that city staff planned to give citywide notices for hearings related to density bonus zoning districts. This new density bonus district is modeled on provisions within the VMU2 regulations that the court found impermissible because of lack of notice. The new regulation will allow for the development of mixed-use buildings on commercially zoned lots throughout the city. In exchange for providing affordable housing, the rezoning process will allow for an extra 30 feet of height.

Mayor Kirk Watson asked questions about the process for adopting the new regulations. He told his colleagues, “Because this is one of the tools that focuses on affordability, we need to get this right. By putting it into the code, what notice are we going to need?”

Link said, “The first step would be to create the district and put it into the code. In order to do that, we would give published notice, and then it would go to the Planning Commission for recommendation and then to Council for approval. That is the only notice that needs to happen because it’s not touching anyone’s existing regulations. It is just going to exist, as we say, on paper, in our city.”

She explained that if Council approves the creation of the district, someone will come into the city and ask to be rezoned into that combining district. “When they do that, staff will review when it goes to the land use commission,” and property owners who are within 500 feet will get individual notice. Those within 200 feet will have the right to protest.

Alter wanted to know whether there was a process the city could use to speed up zoning changes for developers who want to participate in the density bonus program. The answer was no.

Austin’s new HOME Ordinance is the latest in a series of city ordinances that manages to effectively rezone every lot in town by changing the definition of various zoning classifications. 

Soon after the first of these ordinances passed in 2019, longtime residents launched into opposition and filed a lawsuit.  This lawsuit, however made a key tactical error, that has now come back to bite these litigants in a big way.  To flesh out what that error was, let’s first look at what Texas law has to say about Cities’ ability to zone land.

Texas law contemplates only two types of zoning actions: zoning land for the first time, and changing the zoning classification of previously zoned land from one classification to another later on.  The former requires only that notice be given to the public, and that the meeting, and vote, be held in public.  The latter requires giving notice, registering protests from those on or 200 feet from the property having its zoning classification changed, and requiring a super majority vote to override the protest of more than one fifth of those qualified to protest, known as a “valid petition”.  

Texas law does not contemplate, and has nothing to say, about changing the definition of a zoning classification by city ordinance.  It is therefore, a bit of a gray area.

Doug Becker’s mistake in his initial lawsuit known as “Acuna”, was in not taking this larger issue head on, and asking a court to determine whether cities can change the definition of zoning classifications under state law.  It’s not clear, had he, what a Judge would have ruled.  

The City maintained from the beginning that what they were doing was not rezoning.  Becker maintained they were nonetheless effectively rezoning the entire city.  Both were actually right.

Because these Ordinances effectively rezoned the entire city, Becker argued that the standard procedure for rezoning should be required: giving notice, recording protests, and only overriding a valid petition with a super-majority.  Because the City maintained that it was not rezoning anyone, they did not send notice.  And, it just so happened, the vote was only 7-4, a mere majority, but not a supermajority.  

So Becker had an easy, slam-dunk argument at his disposal: he could argue that the City needed to give notice and have a super-majority approval vote.  They had neither, therefore their action was unlawful, he would argue.  Perhaps because he was working pro-bono, or perhaps because he thought it was the correct argument to make, this is the argument he made.  And won.  And won again.  And again.

But, in choosing this line of argument, he handed the City an easy opening to use his ploy against him.  For the HOME Ordinance, the City accepted his premise.  They sent notice.  They voted 9-2, a super-majority.  True, they didn’t accept formal protest from those on or 200 feet from affected property.  How could they? The HOME Ordinance affects tens of thousands of parcels.  But they let everyone complain at City Hall for dozens of hours in public session before voting.  

So what can Becker say now?  That formal protests weren’t properly processed?  Well, sure they weren’t, because it’s simply not feasible for an action that affects the entire community.  

That procedure, the protest mechanism, is not feasible for something like the HOME Ordinance, precisely because Texas law never contemplated a redefining of zoning classifications by ordinance. The protest rules for rezoning a single parcel are square peg, and zoning redefining ordinances are a round hole.

And so now we’ve arrived back where we started: not knowing whether Texas law actually permits the redefining of zoning classifications.  But now, there is actual case law that says Texas law does allow it, so long as the city: gives notice, allows for speaking time at City Hall, and approves the ordinance by a super-majority vote.   And ironically, Doug Becker helped codify this new procedure into case law, opening the door to the City revisiting the ordinances Becker previously had gotten stuck down and voting on them again, using the new procedure the courts and Becker have established.

Russiagate: A Screenplay
https://ombudsman4truth.home.blog/2020/07/28/russiagate-a-screenplay/

Russiagate 2: The Coup
https://ombudsman4truth.home.blog/2020/10/11/russiagate-2-the-coup/

What George Likely Said
https://ombudsman4truth.home.blog/2020/07/18/what-george-likely-said/

Brennan’s ICA was based solely on One Guy
https://ombudsman4truth.home.blog/2020/07/14/brennans-ica-was-based-solely-on-one-guy/

Mueller’s Inconsistent Hacking Timeline
https://ombudsman4truth.home.blog/2020/07/14/muellers-inconsistent-hacking-timeline/

Rebutting Feinstein
https://ombudsman4truth.home.blog/2021/01/24/rebutting-feinstein/

Final Thoughts
https://ombudsman4truth.home.blog/2023/12/02/the-permanent-coup-tying-up-some-final-lose-ends/

I just finished The Permanent Coup by Lee Smith. It’s an excellent book and I strongly recommend it. It added to my knowledge of the Russiagate topic in several areas.

But I do have a few disagreements that lend themselves nicely to further flushing out my final thoughts on Russiagate, a fascinating political story that remains still so badly untold.

The Opening of Crossfire Hurricane

My favorite theory on Russiagate anyone has ever offered up remains Lee Smith’s theory that the codename “Crossfire Hurricane” came from the 1986 comedy Jumpin’ Jack Flash about a British Spy on the run from the KGB. I think Lee is spot on with this observation. And it suggests a few things.

For one, it reveals Strzok was already well aware of Christopher Steele’s Dossier, despite his claims that he wasn’t. This should not be surprising since Steele had already met with FBI agent Michael Gaeta earlier that same month. Also two months earlier the DNC had already gone public with claims it was hacked by Russia, and just one week earlier, after the WikiLeaks DNC emails were released, Robby Mook began telling every news organization he was assured by “experts” that this was a Russian operation in collusion with Trump, ie the Steele Dossier narrative. Surely Strzok would have wondered who these “experts” were. Likely he already knew.

At the time, few reporters took Mook’s theory seriously, and most saw it as an attempt to deflect from the content of the leaked emails. But Trump was being asked about the theory, as was his campaign, constantly. Trump famously reacted by joking that if it was true Russia should help Congress find the subpoened emails Hillary was supposed to turn over to Congress and never did.

The cheeky name also suggests Strzok knew Steele’s Dossier was paid for by the DNC, and therefore didn’t want to predicate an investigation into the Republican campaign on it. So when the Downer tip fell in to his lap, and he could finally open the Russiagate investigation on a predicate unrelated to Steele, he jumped at the chance. But still he couldn’t resist choosing a name that was an inside joke to those in the know that this was really all about the Steele allegations of collusion.

This sequence of events illustrates the first larger point I wish to make that I will return to: Russiagate is a combination of devious actions by unscrupulous actors, AND bizarre coincidences, in some case indirectly influenced by the nefarious ones, but in most cases simply life imitating art in strange ways.

The Downer tip was a perfect example. Downer’s assistant had been told by Papadopoulos that Russia might release hacked Hillary emails. This was a very common rumor in American conservative circles, but one neither she nor Downer might have been aware of. They could be forgiven therefore for thinking it reflected some type of confession, especially when viewed retrospectively after the WikiLeaks were blamed on Russia.

But I do not believe this was any sort of set up. There was a paranoia about Russia in 2016. That they had hacked Hillary’s private State department server. That they might release those emails during the campaign. Perhaps this fever gossip on the Right even helped inspire Glenn Simpson to come up with his Collusion yarn. We’ll never know. But it almost certainly was responsible wholly for George’s statement after a few too many cocktails.

The idea that Mifsud was sent to tell George this, something he was surely already hearing from Fox News and other outlets, in the hopes he may one day regurgitate it, seems highly unlikely. In fact it’s doubtful Mifsud was the source of George’s information. Not only was this theory on Fox News, but it was the subject of a Forbes article by Paul Gregory, a Russia expert who worked with George briefly on the Ben Carson campaign.

Strzok would have known immediately that this prevalent scuttlebutt was likely the source for George’s statement, not any actual inside information from inside a collusion conspiracy with Russia. This is further highlighted by Strzok’s lack of desire to interview George directly to find out for himself, from the horse’s mouth. He’d rather not know.

By not knowing he was able to broaden the investigation very quickly to cover Carter Page and Paul Manafort as well.
Lee Smith makes the excellent observation that it was only after Trump’s Election that Papadopoulos was interviewed. The reason for that is, in hindsight, now obvious.

The Strzok team had predicated a sprawling investigation into a despised political opponent, now the incoming President, based on the idea that George had this information on good authority, but had failed to pin down on exactly WHAT authority. This mystery went from being a useful one, to suddenly being a very problematic one.

The FBI agents who interviewed George had a clear mission, to get this source from him and to make sure the source was plausibly “Russian”. Otherwise, the incoming administration would find out they had been investigated based on nothing.

I believe George may have initially told them it came from Paul Gregory, a professor, but one he met before he was on the Trump campaign. But Gregory had no Russian connection, and so George was pressured to change it to a different professor, Mifsud, who more plausibly did. This then led to George getting his timeline mixed up, which is what he ultimately pled guilty to.

This may seem trivial, but in fact it’s the lynchpin of what should have been John Durham’s report. Without a predicate, everything the FBI did in Crossfire Hurricane was unlawful.

Instead, Durham appears to have swallowed this tale hook, line, and sinker. Even traveling to Italy to investigate the MaGuffin Mifsud.

Everything the Crossfire Hurricane team did was technically legal, according to IG Horowitz, so long as this predictation held up. Bill Barr has said in interviews that George was likely just repeating rumors. Given Barr hand picked Durham, it’s hard to understand this shocking lack of reasoning on his part, unless Durham was “throwing the game”.

The Trump Tower Meeting

Another example of “life imitating art”, in my opinion, is the Trump Tower Meeting. We don’t know who tasked the Agalarovs with trying to get Natalia Vestleneskya a meeting with the Trump team. But we can surmise it was the Oligarch who was paying her to lobby against the Magnitsky sanctions that were crippling his business. He would have likely known the Agalarovs and their connection to Trump.

It’s not crazy to think that this Oligarch pushing for the meeting would think it would be helpful to come bearing gifts.
It’s both an instance of life imitating art, and an illustration of how easily something LIKE the fictitious Collusion conspiracy could indeed take place, hypothetically, on a much smaller scale.

What I think is highly unlikely though, is that Glenn Simpson knew about this outreach, or helped set it up. The reason being that if he had, he would have used it. Either in the Dossier, in the post Election period to please his new sponsors, George Soros and Rob Reiner (of all people), or at any of a dozen other opportunities. Just think about the October 31 NY Times article that almost singlehandedly sank the Collusion narrative, weeks before the Election. Simpson was apoplectic. He would not have sat on the Trump Tower revelation if he knew or participated.

(The only reason the meeting ever became public was because Jared Kushner volunteered it on a security clearance form.)

So we see now how two of the biggest pieces of evidence for Russiagate, the Papadopoulos statement and the Goldstone text message, were both innocuous, though admittedly WILD coincidences.

Oleg Smolenkov and the ICA

Lee Smith’s book is the first major publication I’ve read that highlights the crucial importance Oleg Smolenkov played in the ICA findings. For that it deserves much praise.

While we still don’t know where Mueller’s cyber forensics “proving” Russia hacked the DNC came from, we do know that the finding that Putin hacked specifically to help Trump, rather than just cause chaos, is directly attributable to Oleg Smolenkov. That was revealed by the NY Times when they admitted in a somewhat unrelated article that the NSA’s refusal to fully sign on to that finding in the ICA revolved around Smolenkov, and his seeming lack of concern for his safety after reluctantly defecting. The NSA was doubtful of his credibility, as well they should have been.

The Flynn Prevarication

It is worth pointing out that the FBI only asked Michael Flynn about whether he discussed “sanctions” and not “expulsions” in it’s interview with him. And Smith makes this point admirably.

These two terms, “sanctions” vs “expulsions” quickly became confused, with even Mike Pence using the incorrect term in his infamous Sunday news interview, as well as the infamous Ignatius column that first leaked the call’s existence to the public.

But ultimately it’s unimportant.
What is important, is that Flynn did not believe that Russia was responsible for the DNC hack, and knew for certain that it wasn’t part of a Collusion conspiracy with the campaign. But because the ICA had just been released, being an official US Intelligence product, he was in a very tough situation, where he had to either dismiss this intelligence finding in order to prevent it from damaging US Russia relations, or be a part of furthering this dangerous destabilization.

Unfortunately, that high wire act would be hard to distinguish from what it would have looked like had Russia really been responsible for the hack, and had the campaign really been involved.

This put Flynn in a very difficult situation. He was forced into a choice between undermining US Intelligence, undermining relations with Russia, or lying about what was discussed.

Rather than publicly undermining the ICA, or undermining America’s security, he opted to try to wiggle out of the situation. But by doing so he played right into Obama’s hands, especially when Pence repeated his denial on national TV.

So when he was questioned by the FBI, he would have understood this choice he was making. He would have understood he was caught in a bad spot with no good options. I believe this is why he ultimately plead guilty. It was not merely semantics.

Spying and Unmasking

One major misunderstanding about Crossfire Hurricane is that it was a political espionage campaign akin to Watergate. There’s simply no reason to believe this. The Trump campaign was so disorganized that there was no useful intelligence to gain.

The fact that the Right renamed it “Spygate” was unfortunate because it played in to this idea.

That said, I never fully understood the “Unmasking” issue. Smith’s book is the first time I’ve had it explained to me in a way that makes sense. Smith argues that the Unmasking of intercepts was a continuation of the kind of political espionage done to get the Iran deal across the finish line. The Obama administration didn’t understand what the Trump team believed, politically. And they were anxious to know how they might try to undermine important Obama programs, like the Iran deal. This explanation makes a lot of sense, and should serve to separate it from the Russiagate scandal, as is was really about something else entirely.

So Who was Behind Russiagate?

I still tend to think Russiagate was Glenn Simpson’s idea that the DNC ran with, especially after they were hacked, likely by kids out for “lulz”, like the ones who had just months earlier hacked John Brennan and Colin Powell, and given those emails also to WikiLeaks.

I’m aware of suspicious approaches, like the one to Michael Caputo and Roger Stone by “Hank Greenberg”. But he was offering Clinton Foundation materials and never mentioned Russia, although his actions are very suspicious. And as I stated above, I discount the approach of Goldstone and Vestleneskya being Fusion GPS subterfuge because the revelation was never used. And also as I outlined above, Mifsud likely never told George anything, and merely was a placeholder for Paul Gregory.

Why the FBI got involved is still a bit of a mystery. The most likely explanation is that they were just quite dumb, and really bought in to the Simpson conspiracy theory. Or maybe thought they could uncover something else criminal in the investigation.

The ultimate irony of Russiagate is that what should have been the FBI’s greatest embarrassment, investigating a silly conspiracy theory, was then weaponized, after the fact, to slowly drip release in the press, as a way to manufacture a scandal, despite the inevitable implosion once it was revealed the investigation turned up nothing, because it never happened. This is its ultimate legacy.

This is a doozy of a statement. It perfectly encapsulates each logical flaw defenders of Crossfire Hurricane invoke to justify the investigation. Each point is easily refuted with just a little logic.

We’ve never been told what George Papadopoulos supposedly said to the Australians that made it “appear” the campaign had advance knowledge of the Wikileaks release. But given that conservative commentators on Fox News and in Forbes magazine were openly theorizing that Russia had Hillary’s emails from her time as Secretary of State, anyone simply repeating that rumor could have given the impression, mistakenly, when viewed in retrospect, after the releases, that they had known they were coming. This should have been an obvious possibility to the top detectives at the FBI. Feinstein says this report from the Aussies created the “possibility” that the campaign had advance knowledge. But of course anything is possible, including repeating rumors from Fox News. The timeline for when George made this statement doesn’t help either, as it was months before the DNC emails were hacked. Given the totality of circumstances, the possibility that George’s statement reflected advance knowledge was highly improbable.

Incompetence was the main negative influence on opening such a whacky investigation on such flimsy evidence. However, implicit bias against Trump, combined with incompetence, seems to have been the real problem. When she says here there was no evidence of bias, she means no one explicitly put in writing that they were only pursuing the investigation to get Trump. In fact, I think the evidence does show that they really believed what they were investigating could be real. Which speaks to their incompetence, given the far fetched nature of the allegations and the lack of applied logic.

Flynn was the incoming National Security Advisor and even James Comey said his talking to the Russians was legitimate.

Flynn had a professional disagreement with the ICA conclusions. Flynn’s telling Kislyak to not retaliate actually improved the US’s security.

This is likely true, but as discussed on point one, the decision to open the investigation based on the Australian hearsay was fatally flawed on its own.

Here’s where they like to conflate Obstruction, Collusion, and Russian Interference. By the time Trump fired Comey the FBI had known for months there was no Collusion, but were keeping the investigation open in hopes he might lash out in anger, which he did, so they could then morph it into an Obstruction investigation, given their lack of evidence for Collusion. Regardless of what Russia did or didn’t do, contacts do not Collusion make, and we hardly needed a Special Counsel to investigate Russian Facebook ads and the like.

The Senate Investigation made a lot of to due about Konstantin Kilimnick, but it didn’t prove Collusion any more than Mueller did. Because Collusion didn’t happen. You’d think everyone could agree on that by now.

Given that it didn’t happen, and the investigation was opened on flimsy grounds, by people who’s personal text messages reveal they hated Trump and wanted him to lose desperately, it was certainly not justified.

The FISA was a major scandal. The flimsy opening hasn’t received the same scrutiny. If it did, if for instance we knew what George is supposed to have said verbatim, it would quickly become clear that the investigation should have never been opened, much less carried on for years.