Gaius Publius: Setting a Perjury Trap for Trump

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Yves here. I’m glad to have Gaius lay out this perjury/entrapment question at a high level. One , an attorney, has been bothered about the fact that it’s looked more than a bit obvious that Mueller was not just trying to bait Trump into obstruction of justice, but might also be trying to entrap him. Moreover, left-leaning defense lawyers like have warned that Mueller has tried entrapment strategies in the past. In 2013, the ACLU published a report on the FBI, . Mueller’s name features prominently.

Note that a Politico story to which we linked yesterday reads the state of play between Trump and Mueller as having changed. Trump had repeatedly said he was willing to be interviewed by Mueller:

U.S. President Donald Trump is shifting to war footing in the Russia investigation.

On Wednesday, the White House announced that it had hired a veteran lawyer who helped President Bill Clinton weather impeachment, while Trump’s top personal lawyer expressed new defiance toward special counsel Robert Mueller and his Justice Department superiors.

Combined, the two moves represent a sharp turn away from the cooperation-minded days of 2017 when Trump said publicly that he was eager to sit down with the lead Russia investigator…

Now, amid the prospect of a widening Mueller inquiry that has already ensnared several top Trump aides, along with a potential Democratic wave in the November midterm elections that could give way to impeachment proceedings, Trump and his lawyers are showing signs that they intend to fight back.

The attorney to whom I spoke also said that Trump fighting Mueller was a much more viable strategy than you’d think from reading the press. The special prosecutor’s subpoena authority is limited. His view was Trump has decent odds of successfully contesting or at least considerably narrowing a the scope of a subpoena that sought to compel answers to the questions leaked to the New York Times earlier this week.

By , a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Cfdtrade. Follow him on Twitter , and . GP article archive . Originally published at

A “” is a prosecutorial maneuver and a form of entrapment in which “a prosecutor calls a witness to testify with the intent to base a perjury charge on their statements, not to indict them for a previous crime.” If a prosecutor calls a witness for only that purpose, rather than to get information to further an investigation, the law is clear — it’s .

Perjury traps are most easily executed when the prosecutor has prior knowledge of the matter about which the witness is questioned but doesn’t reveal having that knowledge. In practice perjury traps can be executed while furthering an investigation and still be traps. A prosecutor can ask investigatory questions and set a perjury trap at the same time. Thus, since perjury traps are forbidden in law only in restricted circumstances, they are difficult to avoid.

If the leaked to the New York Times and presented as what Robert Mueller would ask Donald Trump in an official interview, are indeed Mueller’s questions (regardless of ), Mueller may be setting a perjury trap for Trump.

Michael Flynn’s Perjury Trap

Witness the situation of Michael Flynn, about which investigative reporter Robert Parry just weeks before his death:

Russia-gate enthusiasts are thrilled over the guilty plea of President Trump’s former National Security Adviser Michael Flynn for lying to the FBI about pre-inauguration conversations with the Russian ambassador, but the case should alarm true civil libertarians.

What is arguably most disturbing about this case is that then-National Security Adviser Flynn was pushed into a perjury trap by Obama administration holdovers at the Justice Department who concocted an unorthodox legal rationale for subjecting Flynn to an FBI interrogation four days after he took office, testing Flynn’s recollection of the conversations while the FBI agents had transcripts of the calls intercepted by the National Security Agency.

In other words, the Justice Department wasn’t seeking information about what Flynn said to Russian Ambassador Sergey Kislyak – the intelligence agencies already had that information. Instead, Flynn was being quizzed on his precise recollection of the conversations and nailed for lying when his recollections deviated from the transcripts.

Seems like entrapment to me, regardless of what you think of Michael Flynn.

Bill Clinton’s Perjury Trap

If you’re not fond of Michael Flynn, consider Bill Clinton, of whom many have kinder thoughts. In 1998 Jeffrey Rosen in The New Yorker about Ken Starr’s attempt to prove Bill Clinton perjured himself by denying his affair with Monica Lewinsky (emphasis added):

Independent Counsel Kenneth Starr has claimed that his 7-month investigation of President Clinton’s relationship with Monica Lewinsky, which seeks to prove that Clinton and Lewinsky lied under oath in the Paula Jones sexual harrassment case against Clinton, is about lies, not sex. But the public appears to recognize instinctively what the law has long acknowledged: that lies vary in degree and in kind, and that they should be treated accordingly. The President’s aides fear that Starr will try to set a so-called perjury trap in order to catch the President in lies told directly to the grand jury. Perjury traps have become a popular tactic among independent counsels: if they can’t prove the alleged crime they were appointed to investigate, they indict suspects for lying to investigators. But the traps are effective only because independent counsels have succeeded over the past few decades in expanding the lying laws far beyond their historical roots.

The U.S. is a prosecutorial nation, and has been for some time. How else do we explain the popularity of shows like Judge Judy, Jerry Springer and the many like them, shows in which the “unworthy” are subjected to public humiliation? How else do we explain our acceptance of having the ?

How Will the Next “Rogue” President Be Taken Down?

Perhaps you’re fine with this use of prosecutorial power. Perhaps, even though you’d hate it if these tactics were used against you, and hated it when they were used against Bill Clinton, you now love them when used against Trump and his team.

But whatever your view of either man, Donald Trump or Bill Clinton, keep this in mind:

     1. This is the way prosecutors regularly do business in our “” state.

     2. This is one way Mueller is trying to get rid of Donald Trump — this and the blackmail opportunity his investigation of Trump’s finances will inevitably offer.

And thanks to Democrats, who opposed these tactics when used against Clinton’s presidency, and now cheer their use against Trump’s, we see that:

     3. These techniques have now been “blessed” (legitimized) by both parties and the mainstream press, and

     4. They can and will be used freely against any sitting president who falls seriously out of favor with our ruling Establishment.

Do you think a President Sanders would be any more loved, or any less hated, by the DC and press Establishment than Donald Trump is? Imagine a Sanders-like presidency. Remember MSNBC’s behavior to Sanders during the 2016 primary. Remember the Party’s behavior during that time. What do you think would be done to “” him, or anyone like him, by both parties and the press, with both parties’ consent?

What if he adopted a proposal? Such a program, properly executed, would force wages to rise through the entire private sector and affect the bottom line of every corporation with employees in the U.S. What if he starts such a program under current executive power? Now imagine that the program has huge popular support, which means it represents a real legislative threat to our decades-old, comfortable, bipartisan neoliberal Establishment.

Would such a program be allowed by that Establishment to go forward? What if it could not be stopped in any other way than by bringing down (“delegitimizing”) the Sanders presidency itself?

Anyone who attempts to overturn four decades of Establishment neoliberal rule would not be treated kindly by anyone in DC. The bipartisan takedown of a President Sanders would look different than the takedown of Trump, but all of the same actors would participate and all the same tools would be in play.

Please, as you cheer the takedown of President Trump (if you do), keep a president like Sanders in mind.

The NSA Already Knows the Answers to Mueller’s Collusion Questions

Back to Mueller’s questions for Donald Trump. The dirty little secret — which is only “secret” because everyone in the country is pretending it isn’t so — is that the NSA already knows all or most of what Mueller reportedly wants to find out in his for Donald Trump.

Ex-intelligence officers Ray McGovern and William Binney at Robert Parry’s Consortium News (h/t email correspondent Kevin Fathi for the link; emphasis added):

Mueller does not need to send his team off on a “broad quest” with “open-ended” queries on an “exhaustive array of subjects.” If there were any tangible evidence of Trump campaign-Russia collusion, Mueller would almost certainly have known where to look and, in today’s world of blanket surveillance, would have found it by now. It beggars belief that he would have failed, in the course of his year-old investigation, to use all the levers at his disposal — the levers Edward Snowden called “turnkey tyranny” — to “get the goods” on Trump.

Here’s what the “mainstream” media keeps from most Americans: The National Security Agency (NSA) collects everything: all email, telephone calls, texts, faxes — everything, and stores it in giant databases. OK; we know that boggles the mind, but the technical capability is available, and the policy is to “collect it all.” All is collected and stored in vast warehouses.  (The tools to properly analyze/evaluate this flood of information do not match the miraculous state of the art of collection, so the haystack keeps growing and the needles get harder and harder to find.  But that is another story.)

How did collection go on steroids? You’ve heard it a thousand times — “After 9/11 everything changed.”  In short, when Vice President Dick Cheney told NSA Director and Air Force Gen. Michael Hayden to disregard the Fourth Amendment, Hayden saluted sharply. [James Comey, hero of the #Resistance, saluted sharply too, except for that one little time when he asked for changed first.]

And so, after 9/11, NSA’s erstwhile super-strict First Commandment, “Thou Shalt Not Collect Information on Americans Without a Court Warrant,” went the way of the Fourth Amendment. (When this became public, former NSA Director Adm. Bobby Ray Inman stated openly that Hayden violated the law, and former NSA Director Army Gen. William Odom said Hayden ought to be courtmartialed.  The timorous “mainstream” media suppressed what Inman and Odom said.)

And yes, the NSA does indeed spy on everyone, with the help and connivance of Barack Obama:

On January 17, 2014, when President Barack Obama directed the intelligence community to limit their warrantless data searches for analysis/evaluation to two “hops,” either he did not understand what he was authorizing or he was bowing, as was his custom, to what the intelligence community claimed was needed (lest anyone call him soft on terrorism).

Intelligence directors were quite happy with his decision because, basically, it authorized them to spy on anyone on the planet.

“,” NSA chief Keith Alexander famously said. And if whistle-blower Russell Tice is to be believed, the NSA’s been doing just that since 2001, , just as he was emerging onto the national political scene. Tice once claimed in an interview to have held those orders in his hand. He also claimed that similar orders applied to all important judges, including FISA judges, and all Pentagon officers of three-star rank and above. (For conspiracy fans, note that this would have included General Patraeus.)

Setting a Perjury Trap for Trump

To end where we began, here’s what I think we’re about to see next in the Mueller-Trump story. Mueller is attempting to bait Trump into giving an interview. Trump’s former lawyer John Dowd quit recently, Trump’s interest in granting Mueller an interview, which Dowd strongly (and wisely) opposed. Trump recently hired Rudy Guilani, reportedly to with clear boundaries and with it an .

It looks like Trump favors doing the interview. So what will happen if Trump sits down with Mueller? Will he stay on the script his lawyers prepared for him, or will he freelance?

If he freelances, will he lie?

It’s impossible to imagine an not freelancing and not lying. If he lies, he will be charged with perjury and Mueller will have succeeded.

Whether that brings him down, however, is anyone’s guess. (Mine is, it won’t.) After all, the House would still have to impeach him, and even Nancy Pelosi has said ().

Maybe it’s all just one club after all.

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34 comments

  1. The Rev Kev

    OK, I’ll be the bunny here and ask the question. What if, when Trump goes for an interview – assuming he does – it is handled the same way that it was for Clinton with her interview. That is, it is not done under oath, there is no recording of the interview, there is no transcription of the interview or anything else on record. What happens then? Sure, Mueller could easily bait Trump into flying off the handle but if there is no official record, so what. Anything that would come out would be a matter of what Trump reckons he said to what Mueller thinks what he heard, especially if each side only allowed one lawyer to attend with them. It’s not like Trump is going to say that he has been working for Putin all this time and that he wants to make way for US President Mike Pence or anything.

    Reply
    1. Disturbed Voter

      Wish the FBI would entrap every elected official this way, but under oath, and put them all in jail. Everything a government official says, should be done under a lie detector, if those things actually worked.

      Reply
      1. David

        First they came for the Socialists, and I did not speak out—
        Because I was not a Socialist.
        Then they came for the Trade Unionists, and I did not speak out—
        Because I was not a Trade Unionist.
        Then they came for the Jews, and I did not speak out—
        Because I was not a Jew.
        Then they came for me—and there was no one left to speak for me.

        Reply
      1. Tony Wright

        “Tell me lies, tell me lies, tell me sweet little lies…..” Fleetwood Mac 1980something.
        That is what Americans voted for when they elected Trump.
        Those rust belt jobs all coming back because Trump got elected?
        The American people won’t need Mueller to prove Trump is a pathological liar.
        Trump will construct his own political gallows.
        The sooner the better.

        Reply
  2. AbateMagicThinking But Not Money

    Historical Roots:

    I wonder whether the lawmakers who allowed limited liability had any idea where it would lead: limited companies owning limited companies, shell companies, etc, etc.

    Pip-Pip

    Reply
  3. Doug

    Thanks for the article. Just to enlarge on one point: delegitimizing of president is now a given … a feature, not a bug. And it doesn’t wait until after the election. It is part of the election process.

    At some level, this has gone on forever in the US. But, of course, it’s much more explicit and extensive today. Arguably, for example, George HW Bush was the last president who might have claimed legitimacy on the day he was elected (and I’m sure the commentariat could argue the other side of that too).

    Still, if we can at least imagine legitimacy for Bush senior (and others who held the office before him), it’s much harder to claim that Clinton, Bush 2, Obama and Trump were roundly considered legitimate the day they won the office.

    Red/blue-to-the-death politics funded and controlled by the uber wealthy, connected and powerful has destroyed the legitimacy of the office of president. It matters not who actually wins.

    Reply
  4. Marshall Auerback

    Alexander Mercouris in has a similarly excellent analysis. I get that everybody loathes Trump, but I love democracy more than I hate Trump and would just as soon use the ballot box, not a dubious prosecutorial trick, to get rid of the guy. As an aside, Trump routinely violates the Emoluments Clause on an almost daily basis, yet nobody seems to think this constitutes grounds to impeach him. This is probably because Congress now views government service as the fastest path toward personal enrichment, and therefore doesn’t dare call attention to its own practices by charging the president on those grounds. The scale of institutional corruption in the US is now akin to Brazil

    Reply
    1. ObjectiveFunction

      The Archdruid has it exact:

      “In a democracy, by contrast, there are always people who have wealth but want influence, and people who have power but want money, and the law of supply and demand takes it from there. Those who claim that the existence of political corruption in America shows that it’s no longer a democracy thus have the matter exactly backwards; it’s precisely because American national, state and local governments are more or less democratic that corruption flourishes here, as it has in nearly every other democracy on record.”

      Reply
  5. sleepy

    Much of the msm seems aghast that Trump’s legal team appears to have decided on a more aggressive legal role. One law prof pundit said they were being “obstreperous”, dismissing any and all colorable legal defenses. Good lord, don’t we have an adversarial legal system where defense counsel is expected to be aggressive and challenge the prosecution? And who on earth–no competent attorney–would agrees to have a client interviewed by the prosecutor?

    Last night Chris Hayes surprisingly had an excellent interview with Victoria Toensing, a former Asst. US attorney and criminal defense attorney who approvingly discussed the legal defense that Article II power allows the president to fire Comey for any reason he wishes and that power is not subject to judicial review and cannot be the predicate for any crime. She also argued that Rosenstein, who wrote the memo justifying Comey’s dismissal, should in no way shape or form be involved in the investigation, i.e., Rosenstein is either a co-conspirator or a witness. Yet, these claims are dismissed by the msm as bordering on frivolous. It doesn’t mean they will be successful, but they are certainly legitimate defenses and imo it would border on malpractice not to make them.

    Finally, she used the Mark Rich pardon as an example of presidential power. The Clintons had received $500,000 in donations from the Rich’s. The FBI opened an initial investigation (by none other than James Comey) and made the determination that, yes, the president had the unfettered authority to pardon for any reason, or for no reason at all.

    None of this means that Clinton couldn’t be charged in a bribery scheme if the evidence was there, but the pardon itself would not be the crime. Bribery would occur regardless of whether the pardon went through if for example Clinton reneged and stiffed Rich. Trump as well could be charged with obstruction of justice if he destroyed documents or told a witness to lie or for bribery if that was the motivation to fire Comey, but firing Comey would not be the predicate crime.

    Reply
    1. JohnnyGL

      On a side note, I’d like to see Presidential pardons made illegal.

      It’s kind of a ridiculous amount of power to give a person. It’s literally a get-out-of-jail free card. It shouldn’t be legal.

      Dems won’t touch it, though, because

      1) They don’t want to solve problems, because that means governing and they don’t want to govern. They just want to fundraise off the other guy.

      2) OMG political/procedural/democratic norms are SOOOOO important!

      2) Is what they’ll say….but 1) is what it’s really all about.

      Pelosi’s pretty up front about it. People criticize her for losing votes, but that’s not how she keeps score. She looks at fundraising totals and sees nothing but winning.

      Reply
      1. Swamp Yankee

        I must disagree on pardons, JohnnyGL. Like anything, it has its dangers but also its uses.

        Think of Jimmy Carter’s pardon of people who fled to Canada during Vietnam. Or when, of all people, Warren G. Harding pardoned Eugene V. Debs (whom the Woodrow Administration had serving ten years for giving a pacifist speech during WWI). Since it’s part of the monarchical element in our constitutions, it also goes to state governors, and you can imagine a genuinely Left governor getting elected and using the pardon power to free the wrongly or unjustly or draconianly jailed. I seem to recall examples of this happening — maybe the NC commentariat can help out?)

        It’s important for a check on the judicial system, too.

        Reply
  6. JohnnyGL

    Very good article, thanks for posting.

    I want to make one point that may turn out to be important. What’s Trump’s GREATEST political talent? I’d argue it’s getting his political opponents to make complete idiots of themselves….Jebbie, Rubio, HRC. They’ve all become cartoonishly ridiculous and ended up with serious reputational damage from their battles with Trump.

    What if Trump perjures himself slightly, and on purpose, just to make the investigation look like it’s just designed to find a way to get him, no matter how they do it (which has the helpful aspect of being true).

    His polls are at one-year highs, if Mueller gets him on perjury because Trump “claims he was in Russia for 36 hours and we know it was 37 because we have the flight records!!!”

    The Dems immediately yell, “IMPEACH, IMPEACH!!!!” Naturally, they look like idiots, because they usually do. American public yawns and says, “wait a sec, what exactly are they getting him on???”.

    Trump’s polls go up and he’s even harder to impeach.

    Reply
    1. Jack

      do you REALLY think anyone (Mueller?) is looking for any slight inconsistency from Trump as grounds to eviscerate him?

      Reply
  7. Katniss Everdeen

    As far as I’m concerned, this is the nugget that no one who hopes to make REAL change a reality–Medicare for all or peace on earth as examples–can ever lose sight of:

    Anyone who attempts to overturn four decades of Establishment neoliberal rule would not be treated kindly by anyone in DC. The bipartisan takedown of a President Sanders would look different than the takedown of Trump, but all of the same actors would participate and all the same tools would be in play.

    Please, as you cheer the takedown of President Trump (if you do), keep a president like Sanders in mind.

    It is readily acknowledged that achieving meaningful, permanent, tremendously necessary change will be “hard work.” Most suggest that it is “hard work” they are willing to do. But if defending a president Donald Trump against an all out neoliberal assault despite how one feels about him personally is part of the bargain, are they….we….up to the job?

    Reply
    1. MyLessThanPrimeBeef

      That would make what Sanders says about the take-down informative.

      Does he call out the take-down either 1. as an impartial observer or 2. out of self interest, should he be in the same position in a few years?

      Reply
  8. lyman alpha blob

    Of course Mueller will try for entrapment – that’s how he’s made his bones his entire career.

    Lest we forget –

    But in its commonly understood usage, FBI entrapment is a widespread tactic. Within days of the 9/11 terror attacks, FBI director Robert Mueller issued a memo on a new policy of “forward leaning – preventative – prosecutions”.

    Reply
  9. BenX

    You can’t get caught in a “perjury trap” if you tell the truth – something Trump is incapable of doing. Because he is such a consummate liar, he certainly will be prosecuted for perjury if he ever speaks under oath.

    Reply
    1. Harrold

      “I don’t recall”

      -Ronald W Reagan

      187 times, Iran-Contra Hearings

      “I was asleep during those cabinet meetings where Iran-Contra was discussed”

      George W Bush,Iran-Contra Hearings

      Reply
    2. Yves Smith Post author

      It appears you did not read the article. That’s a violation of our written site Policies. It discusses at the top how Flynn was found guilty of perjury by making him try to recall details of conversations when he was not told the prosectors had a transcript.

      See this video, Why You Should Never Speak to the Police:

      This expert contends there was nothing improper about Flynn’s conversation:

      It shows how police and prosecutors can depict honest people as perjurers. And brain science has found that people don’t remember in the way that’s commonly thought, that people reconstruct events ever time they thing about them, which is why memory is never perfect.

      Reply
      1. Bobby Gladd

        “brain science has found that people don’t remember in the way that’s commonly thought, that people reconstruct events ever time they thing about them, which is why memory is never perfect.”

        Yes. This has long been known, way predating current “neuroscience.” I once had a senior undergrad seminar in “Psychology of Law” (1985). One of our attorney presenters noted that people reconstruct variant memories as a function of the pressures being applied to them at the time. Think “eyewitness to a crime,” regarding which you were unprepared to experience. Now you have all these contending parties trying to shape your subsequent recall on the record.

        We’ll never know how many people have been convicted on the basis of false “eyewitness testimony.” The lawyer that day said something along the lines of “If you’ve got an eyewitness against you, even if you’re innocent, you’d better look at a plea deal.”

        Reply
      2. Mike Furlan

        Yes, you should never speak to the police.

        And, yes, the police have locked up many, many millions of innocent people since the dawn of law enforcement.

        But both can be true, cops are crooked, and Flynn was a liar.

        Mike Flynn, the guy who wanted us to believe that Hillary Clinton was running a child sex ring was not just another honest man who just happened to run afoul of the law.

        Reply
        1. Lambert Strether

          I’d say that qualifies Flynn for high office; he’s certainly in good company with Clapper (perjury), Hayen (torture), and Mueller (entrapment). Granted, the latter three are all heroes of #TheResistance, and Flynn is not, but it’s not clear to why not…

          Reply
  10. Mike Furlan

    “Instead, Flynn was being quizzed on his precise recollection of the conversations and nailed for lying when his recollections deviated from the transcripts.”

    This is not true.

    Flynn was not caught out by failing to have a “precise recollection” of a conversation. He lied about the main point of the conversations.

    Reply
    1. cocomaan

      If this page is legit, that’s true.

      But this factcheck article makes it sound nefarious that Flynn was talking with Kislyak. From what I can see, he was being diplomatic and trying – with baby steps – to end the Syrian conflict, rather than continue the Obama administration policy of perpetual warfare in the Levant and greater MENA.

      The establishment’s idea of statecraft is to refuse to talk to anyone.

      Reply
  11. Susan the other

    Thank you for this post. I think there is method in Giuliani’s madness. If Trump comes out on Stormy now he can’t be set up by Mueller for perjury over her allegations. And if one were to carry that thinking forward it would also be logical for Trump, who has taken both sides of almost every issue, to do a few strategic tweet storms doing just that – take both sides of any question pending by Mueller. Give a few of his ditzy speeches with precise statements hidden in his puffery. He isn’t lying -he just has an open mind which he changes all the time. I think Mueller’s goal is making some big money laundering indictments – as if the FBI hasn’t turned a blind eye to all of it since the early 90s. Please.

    Reply
  12. Francois

    The urban legend wanting us to believe the NSA collect everything about every American has got to die already.

    The Kremlin Edward Snowden is one of their agents.

    This alone should give anyone a loooong pause about anything he said regarding the NSA and allies.

    Reply
    1. blennylips

      Nice drive by bot.

      Yes, those under the sway of the determined The XX Committee already knew that. They also know

      Forget Pee-Pee Tapes: the Kremlin Just Dropped a Bigger Bomb on the White House

      Kremlingate Is Really Just Watergate for Morons—With Russians

      Fox News’ Kremlin Ties Go Much Deeper Than Just Sean Hannity

      Desperate for Dirt on Western Intelligence Agencies, Russia Just Makes It Up

      Many stories lead back to observer.com.

      Reply
  13. Lambert Strether

    If we believe Harry Frankfurt (On Bullshit) bullshit is not at all the same thing as lying. So, if Trump is bullshitting, is he lying? I don’t think so. Commercial puffery, for example, is not false advertising.

    Reply
    1. marym

      The Toronto Star is documenting false claims in what appears to be a careful manner. The author live tweets some of Trump’s speeches, giving a general analysis real-time, and then often solicits input or explains his categorization of a particular statement.

      The Star is keeping track of every false claim U.S. President Donald Trump has made since his inauguration on Jan. 20, 2017. Why? Historians say there has never been such a constant liar in the Oval Office. We think dishonesty should be challenged. We think inaccurate information should be corrected. And we think the sheer frequency of Trump’s inaccuracy is a central story of his presidency.

      Reply

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