Tap-Dancing On The Line, But Not Actually Over It: My Thoughts On Part Two of The Mueller Report
Okay, now that we've dispensed with the first part of the Mueller Report, we need to move into the second part of the Mueller Report, which, to me, contains far more troubling shenanigans than part one- mainly because, again, the reaction of this Administration and this President seems to be so bizarre it almost defies description.
The ultimate frustration with Part Two- if not the whole Mueller Report has to go down to the Hedge To End All Hdeges: his principle conclusion was that the evidence he found doesn't seem to indicate that the President committed a crime, but the evidence doesn't completely exonerate him either. Like, what does that mean? Is there more evidence out there? Are you expecting more evidence to come to light? Is there so much political pressure to justify this investigation that you felt like you had to come up with something that might sort of fit the bill?
(Minor tangent time: imo, the time has come to reevaluate the whole idea of a Special Counsel. I think that yes, independent investigations of the Presidency need to be just that: independent, however in my lifetime I've seen one Special Counsel start investigating real estate fraud and end up trying to get the President for getting a beej from an intern in the White House and lying about it. Mueller doesn't go quite that far and for sure, part one of this report is necessary work to assess what if anything happened during the 2016 elections. But hanging over all this is the unspoken pressure that if you're going to be a Special Counsel and going to do all this investigating then you need to come up with something. And Mueller, to his credit didn't fall into that trap. He's thorough and you get the sense that he's going where the facts are leading him- but I get the feeling he hedges so much because he knows people are going to want that silver bullet and he just couldn't get that.
Going forward, at minimum I think there needs to be fixed terms for these things. You shouldn't be able to investigate ad nauseum until you find something damning. Special Counsel investigations should have tight parameters and oversight from both DOJ and the appropriate branch of government and have to ask for more time and get it approved.)
What makes Part 2 especially weird is that Part 1 is pretty clear that the President wasn't involved in an underlying crime related to election interference. And yet, here we are.
Probably the most disturbing thing about Part 2 is the fact the President's staff kept him out of trouble- and that's trouble with a capitol 'T' simply by sort of blowing him off. That's disturbing as all giddy-up, but also not without precedent in our history I think. (When Woodrow Wilson had a stroke, his wife essentially ran the country for awhile with the everyone being none wiser.) We'll get into the specifics of who in particular saved the President's bacon here in a 'graph or two, but the weirdness of it all remains: why deny all ties to Russia when anyone with a Google machine and some basic interwebs skills can find out the opposite? Why not lean into it a little bit?
Seriously. The President's blanket denials are either so ill thought out or so anachronistic that it defies comprehension. This is 2019. Nobody has to take anyone at their word anymore. (And really, it's looking more and more like we shouldn't.) Simply saying: "I have done business all over the world, including Russia and was in the early stages of trying to get a Trump Tower built in Moscow until the election was won." Something more or less like that takes the wind straight out of a lot of this narrative about Trump, Russia and collusion. His denials in the face of evidence indicating that he does have ties to Russia- even if they are legitimate, just makes him look shady.
The opening act of Part 2, is of course, the Comey Firing. Initially, the President's meeting with Comey seems to look okay. By all accounts it was cordial, business like and generally speaking nbd. When Flynn gets into trouble, however things go sideways. Comey is brought back in and the President urges him to find a way to 'let the Flynn thing go.' Which doesn't look all that good- but again, it's so weird. Like, he tap dances right on the edge of illegality by making inferences and dropping hints and being vague enough with his words that he can deny it but the subtext is there. Comey either doesn't pick up what the President's putting down or completely misses the subtext of his words and is fired shortly thereafter.
(The Comey Firing makes it clear that the President's reaction to the investigation has the potential to get him into trouble far, far more than the actual investigation we saw in Part One does. I also don't really have a lot of sympathy for Comey at the end of the day-- he tanked a Presidential election and even if Mrs. Clinton would have won the Presidency, I bet he would have been the first one shown the door- another little side note that we'll never know the outcome of is the tarmac meeting between Bill Clinton and then Attorney General Loretta Lynch- because that was shady as hell as well.)
The appointment of the Independent Counsel also seems to have triggered another reaction from the President, who thought it was 'the end of his fucking Presidency' I think a lot of his reaction to the investigaiton is more ego-driven self-preservation than anything actually malicious. He wants it to go away-- perhaps, given the overall shade hanging over the investigation, because there's something he wants to hide. I think you could make the argument that he saw what an Independent Counsel did to Bill Clinton's presidency and wanted it to go away because he figured Mueller would keep coming and keep coming until he found something to take him down with- which goes back to what I was saying earlier about reforming the whole idea of an Indepedent/Special Counsel. Presidents of any party or inclination could have legitimate reason to feel that way. Evidence does tend to lend weight to the notion that if there is a Special Prosecutor, they're gonna damn well find something.
With the appointment of Mueller, then AG Jeff Sessions recused himself from the Russia Investigation, which lead to the President straight up calling White House Counsel Don McGahn and telling him to fire Sessions, which McGahn just straight up didn't do. Again, the President's staff steps in to save the day- disturbing that they had too, but at least someone in the Administration knows enough to be like 'no, dude, we can't do that.' (And in reality, there's a real argument to be made the McGahn is the hero- or the villain, depending on how you feel about the current administration in all of this- if he would have gone threw with the President's requests it would have meant the end of his Presidency from a political, if not actual point of view.)
The President's reactions to all of this are somewhat curious, as a lot of this is undermined by Part One. It seems to be an overreaction to the investigation. Whether it's an overreaction for a reason and Mueller just didn't find what he was looking for in terms of a 'silver bullet' that may or may not be out there still I don't know- but if Part One looked worse than it did, then a lot of this would make sense. Part One wasn't great, but it wasn't a disaster either-- but a lot of this still looks bad.
It's a bit of a reach, but maybe it's the old, 'we should run the government like a business' schtick. I mean, he is an outsider. Maybe he's used to getting what he wants when he wants it and that might be how the uber rich billionaire thing works but it isn't how government works. These institutions have been there for centuries now and they've got a lot of inertia, through history and just the sheer overwhelming force of bureaucracy that works in their favor. He probably does genuinely see the Attorney General as an 'employee' which in a certain sense is correct, but also the independence of the AG and the Justice Department is kind of critical to making sure the government can actually function properly if it needs to investigate itself.
(I sort of skimmed past it, but the President also apparently made an attempt to get Sessions to unrecuse himself on the investigation by asking former campaign manager Corey Lewandoski to convey that message. Lewandoski just straight up didn't do it-- it's less of an issue as he wasn't directly on White House staff at the time, but it still happened and it was still ignored. Again, disturbing.)
Then we get to the interesting question of all of this-- usually, things like obstruction of justice involve some kind of cover-up-- but, is it really a cover up if you verbally spray shit all over the internet for everyone to see? Mueller kind of tires to make the argument that the President's public statements on Manafort (saying that it's unfair, that Manafort is a good guy, etc/whatever he said) were an attempt to influence the jury. That, to me, is a massive stretch, because it's entirely subjective and dependent on the jury. There's no way to measure that effective- especially since it's not like the jury had any trouble convicting Manafort at the end of the day.
Same deal with Cohen- there's an attempt to suggest the same thing here- but other than the rather ugly behavior of the President- again, in public, for everyone to see- there's really very little evidence that a. it was an attempt to influence the jury or b. that it actually worked. (Though sort of slipped in there in passing, we find out that the Steele Dossier is unverified and that Cohen never travelled to Prague, so it seems like a lot of that whole much ballyhooed nonsense is just that: nonsense.)
Toward the end of part two, there's a random page or two just full of redactions. There are redactions throughout, but it's placement struck me as a little bit curious- as the amount of redactions was somewhat unusual. Throughout the report, there were sentences and maybe paragraphs here and there, but a whole page? Kind of stuck out to me- and I don't know what, if anything it might mean. I get that Grand Jury testimony is, by it's nature, secret- but this also underlines the need for Special Counsel reform. You should have to produce a product that everyone can see in the interest of public transparency.
Finally, (FINALLY), we arrive at the legalese of it all where Mueller goes on forever about various obstruction statues and whether any of the President's behavior falls under the. My understanding of all the legalese is probably a little suspect because I'm not a lawyer, but a couple of paragraphs jumped out at me-- there's this one:
Maybe there's a legalese aspect that I'm not getting on this stuff, but this sort of convinces me that the President was perhaps on the line with a lot of this stuff, but ultimately his staff's refusal to follow through on a lot of these requests meant that he didn't actually cross it. The pages and pages of legalese alone would be nightmarish to argue in front of a Judge or Jury and then the argument becomes largely about semantics-- what did the President's words actually mean and how do we interpret the law itself?
Happily, Mueller touches on the vagueness of it all:
Two final points remain- one more dollop of legalese and then the nuggets of treasure buried in the appendix.This paragraph was interesting:
Buried in the far back of the Mueller Report, we find a transcript of the President's written answers as requested by the Special Counsel. Unsurprisingly, they contain a lot of 'I don't recall' and 'I have no recollection of' which again, looks shady as hell but doesn't strike me as all that unsurprising.
So where does this leave us and the end of the day? What was all the shrieking about? This wasn't a silver bullet. Should be troubled by the lack of progress made toward securing our elections? Yes. Should we be troubled by the President's character flaws and the company he keeps? At this point- not really. He is who he is and if you're surprised by that, where have you been the past three years? Here's the thing: throughout all this narrative building Mueller shrieking, the Conservative blogosphere has been looking at the other side of the equation. With things like QAnon and Pizzagate out there in the world, it's easy to dismiss them yelling 'BUT THE DEEP STATE' as just paranoid conspiracy theories, but here's my thought: what if you take the Mueller 'Trump is a Russian Agent' yelling and add it together with the 'BUT THE DEEP STATE' yelling and divide by two- and maybe, somewhere in the middle you might end up with something that is fairly close to the truth of the matter.
I think the true picture is incomplete. Attorney General Barr is looking into the whole 'Spygate' thing. There's an Inspector General Report on any potential shenanigans that may have occurred in the aftermath of the 2016 election. I don't know if their reports are going to be released to the public, but if they are I think I'll probably have to read those as well to try and figure out what really happened. By the time that happens, I'm sure it'll be a moot point at the end of the day or maybe I just won't care by then- goodness knows making my way through the Mueller Report took a lot out of me- I don't know if I'd be up for one or two more of these things.
The TL;DR of it all: Disturbing, troubling, but I'm not honestly sure that anything blatantly illegal was done. I think you could make an argument to impeach, but it wouldn't go anywhere in the Senate and I'm not sure you could make a good argument and that's kind of a problem. You shouldn't have to persuade people about high crimes and misdemeanors, it should be pretty damn obvious to everyone from Neil DeGrasse Tyson right down to Cletus the Yokel on The Simpsons. I don't think The Mueller Report reaches that threshold. Maybe his testimony will shed new light on this stuff-- maybe new evidence will come to light to change what was in the report. But as of right now, it is what it is and what it is doesn't appear to be all that much.
The ultimate frustration with Part Two- if not the whole Mueller Report has to go down to the Hedge To End All Hdeges: his principle conclusion was that the evidence he found doesn't seem to indicate that the President committed a crime, but the evidence doesn't completely exonerate him either. Like, what does that mean? Is there more evidence out there? Are you expecting more evidence to come to light? Is there so much political pressure to justify this investigation that you felt like you had to come up with something that might sort of fit the bill?
(Minor tangent time: imo, the time has come to reevaluate the whole idea of a Special Counsel. I think that yes, independent investigations of the Presidency need to be just that: independent, however in my lifetime I've seen one Special Counsel start investigating real estate fraud and end up trying to get the President for getting a beej from an intern in the White House and lying about it. Mueller doesn't go quite that far and for sure, part one of this report is necessary work to assess what if anything happened during the 2016 elections. But hanging over all this is the unspoken pressure that if you're going to be a Special Counsel and going to do all this investigating then you need to come up with something. And Mueller, to his credit didn't fall into that trap. He's thorough and you get the sense that he's going where the facts are leading him- but I get the feeling he hedges so much because he knows people are going to want that silver bullet and he just couldn't get that.
Going forward, at minimum I think there needs to be fixed terms for these things. You shouldn't be able to investigate ad nauseum until you find something damning. Special Counsel investigations should have tight parameters and oversight from both DOJ and the appropriate branch of government and have to ask for more time and get it approved.)
What makes Part 2 especially weird is that Part 1 is pretty clear that the President wasn't involved in an underlying crime related to election interference. And yet, here we are.
Probably the most disturbing thing about Part 2 is the fact the President's staff kept him out of trouble- and that's trouble with a capitol 'T' simply by sort of blowing him off. That's disturbing as all giddy-up, but also not without precedent in our history I think. (When Woodrow Wilson had a stroke, his wife essentially ran the country for awhile with the everyone being none wiser.) We'll get into the specifics of who in particular saved the President's bacon here in a 'graph or two, but the weirdness of it all remains: why deny all ties to Russia when anyone with a Google machine and some basic interwebs skills can find out the opposite? Why not lean into it a little bit?
Seriously. The President's blanket denials are either so ill thought out or so anachronistic that it defies comprehension. This is 2019. Nobody has to take anyone at their word anymore. (And really, it's looking more and more like we shouldn't.) Simply saying: "I have done business all over the world, including Russia and was in the early stages of trying to get a Trump Tower built in Moscow until the election was won." Something more or less like that takes the wind straight out of a lot of this narrative about Trump, Russia and collusion. His denials in the face of evidence indicating that he does have ties to Russia- even if they are legitimate, just makes him look shady.
The opening act of Part 2, is of course, the Comey Firing. Initially, the President's meeting with Comey seems to look okay. By all accounts it was cordial, business like and generally speaking nbd. When Flynn gets into trouble, however things go sideways. Comey is brought back in and the President urges him to find a way to 'let the Flynn thing go.' Which doesn't look all that good- but again, it's so weird. Like, he tap dances right on the edge of illegality by making inferences and dropping hints and being vague enough with his words that he can deny it but the subtext is there. Comey either doesn't pick up what the President's putting down or completely misses the subtext of his words and is fired shortly thereafter.
(The Comey Firing makes it clear that the President's reaction to the investigation has the potential to get him into trouble far, far more than the actual investigation we saw in Part One does. I also don't really have a lot of sympathy for Comey at the end of the day-- he tanked a Presidential election and even if Mrs. Clinton would have won the Presidency, I bet he would have been the first one shown the door- another little side note that we'll never know the outcome of is the tarmac meeting between Bill Clinton and then Attorney General Loretta Lynch- because that was shady as hell as well.)
The appointment of the Independent Counsel also seems to have triggered another reaction from the President, who thought it was 'the end of his fucking Presidency' I think a lot of his reaction to the investigaiton is more ego-driven self-preservation than anything actually malicious. He wants it to go away-- perhaps, given the overall shade hanging over the investigation, because there's something he wants to hide. I think you could make the argument that he saw what an Independent Counsel did to Bill Clinton's presidency and wanted it to go away because he figured Mueller would keep coming and keep coming until he found something to take him down with- which goes back to what I was saying earlier about reforming the whole idea of an Indepedent/Special Counsel. Presidents of any party or inclination could have legitimate reason to feel that way. Evidence does tend to lend weight to the notion that if there is a Special Prosecutor, they're gonna damn well find something.
With the appointment of Mueller, then AG Jeff Sessions recused himself from the Russia Investigation, which lead to the President straight up calling White House Counsel Don McGahn and telling him to fire Sessions, which McGahn just straight up didn't do. Again, the President's staff steps in to save the day- disturbing that they had too, but at least someone in the Administration knows enough to be like 'no, dude, we can't do that.' (And in reality, there's a real argument to be made the McGahn is the hero- or the villain, depending on how you feel about the current administration in all of this- if he would have gone threw with the President's requests it would have meant the end of his Presidency from a political, if not actual point of view.)
The President's reactions to all of this are somewhat curious, as a lot of this is undermined by Part One. It seems to be an overreaction to the investigation. Whether it's an overreaction for a reason and Mueller just didn't find what he was looking for in terms of a 'silver bullet' that may or may not be out there still I don't know- but if Part One looked worse than it did, then a lot of this would make sense. Part One wasn't great, but it wasn't a disaster either-- but a lot of this still looks bad.
It's a bit of a reach, but maybe it's the old, 'we should run the government like a business' schtick. I mean, he is an outsider. Maybe he's used to getting what he wants when he wants it and that might be how the uber rich billionaire thing works but it isn't how government works. These institutions have been there for centuries now and they've got a lot of inertia, through history and just the sheer overwhelming force of bureaucracy that works in their favor. He probably does genuinely see the Attorney General as an 'employee' which in a certain sense is correct, but also the independence of the AG and the Justice Department is kind of critical to making sure the government can actually function properly if it needs to investigate itself.
(I sort of skimmed past it, but the President also apparently made an attempt to get Sessions to unrecuse himself on the investigation by asking former campaign manager Corey Lewandoski to convey that message. Lewandoski just straight up didn't do it-- it's less of an issue as he wasn't directly on White House staff at the time, but it still happened and it was still ignored. Again, disturbing.)
Then we get to the interesting question of all of this-- usually, things like obstruction of justice involve some kind of cover-up-- but, is it really a cover up if you verbally spray shit all over the internet for everyone to see? Mueller kind of tires to make the argument that the President's public statements on Manafort (saying that it's unfair, that Manafort is a good guy, etc/whatever he said) were an attempt to influence the jury. That, to me, is a massive stretch, because it's entirely subjective and dependent on the jury. There's no way to measure that effective- especially since it's not like the jury had any trouble convicting Manafort at the end of the day.
Same deal with Cohen- there's an attempt to suggest the same thing here- but other than the rather ugly behavior of the President- again, in public, for everyone to see- there's really very little evidence that a. it was an attempt to influence the jury or b. that it actually worked. (Though sort of slipped in there in passing, we find out that the Steele Dossier is unverified and that Cohen never travelled to Prague, so it seems like a lot of that whole much ballyhooed nonsense is just that: nonsense.)
Toward the end of part two, there's a random page or two just full of redactions. There are redactions throughout, but it's placement struck me as a little bit curious- as the amount of redactions was somewhat unusual. Throughout the report, there were sentences and maybe paragraphs here and there, but a whole page? Kind of stuck out to me- and I don't know what, if anything it might mean. I get that Grand Jury testimony is, by it's nature, secret- but this also underlines the need for Special Counsel reform. You should have to produce a product that everyone can see in the interest of public transparency.
Finally, (FINALLY), we arrive at the legalese of it all where Mueller goes on forever about various obstruction statues and whether any of the President's behavior falls under the. My understanding of all the legalese is probably a little suspect because I'm not a lawyer, but a couple of paragraphs jumped out at me-- there's this one:
(c) Whoever corruptly- (!) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.The words, 'attempts to do so' are probably the stickiest wicket of all of this. Was the President's behavior an attempt to obstruct? If it was, then I don't think it worked. People were indicted. The investigation proceeded. Sessions didn't unrecuse himself. It was all sound and fury that amounted to not very much at all at the end of the day. The question of whether intent to commit obstruction matters is even more vague, because then you're going to get lost in the meaning of the President's words and we've seen throughout the course of his administration at least thus far that the President is both very careful and not so careful with his choice of words- there is a reason why they didn't do an in-person interview with Mueller- because I have a feeling that the President would have wandered in and out of perjury like he was going through a swinging door in a Old West Saloon.
Maybe there's a legalese aspect that I'm not getting on this stuff, but this sort of convinces me that the President was perhaps on the line with a lot of this stuff, but ultimately his staff's refusal to follow through on a lot of these requests meant that he didn't actually cross it. The pages and pages of legalese alone would be nightmarish to argue in front of a Judge or Jury and then the argument becomes largely about semantics-- what did the President's words actually mean and how do we interpret the law itself?
Happily, Mueller touches on the vagueness of it all:
b. Courts also seek to construe statutes to avoid due process vagueness concerns. See, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016); Skilling v. United States, 561 U.S. 358, 368, 402-404 (2010). Vagueness doctrine requires that a statute define a crime "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and " in a manner that does not encourage arbitrary and discriminatory enforcement." Id. at 402-403 (internal quotation marks omitted). The obstruction statutes' requirement of acting "corruptly" satisfies that test. "Acting 'corruptly' within the meaning of§ 1512(c)(2) means acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct" the relevant proceedingAgain, this seems to be a tortuous and very vague argument- and I'll freely adit that this portion of the report was the hardest to wrap my head around because it was so damn dense and so damn vague. Could be that all of this amounts to a fairly decent argument and a lawyer could probably tell you more. But I'm a total layperson and all this crap gave me a headache and I actually bothered to read the damn thing. Try getting Congress to make that argument to the American people that we need to impeach this guy strikes me as a Herculean task indeed!
Two final points remain- one more dollop of legalese and then the nuggets of treasure buried in the appendix.This paragraph was interesting:
Where the Constitution permits Congress to impose a good-cause limitation on the removal of an Executive Branch officer, the Constitution should equally permit Congress to bar removal for the corrupt purpose of obstructing justice. Limiting the, range of permissible reasons for removal to exclude a "corrupt" purpose imposes a lesser restraint on the President than requiring an affirmative showing of good cause. It follows that for such inferior officers, Congress may constitutionally restrict the President's removal authority if that authority was exercised for the corrupt purpose of obstructing justice. And even if a particular inferior officer's position might be of such importance to the execution of the laws that the President must have at-will removal authority, the obstruction-of-justice statutes could still be constitutionally applied to forbid removal for a corrupt reason. 1088 A narrow and discrete limitation on removal that precluded corrupt action would leave ample room for all other considerations, including disagreement over policy or loss of confidence in the officer's judgment or commitment.So, what...if Congress suspects that a President fires somebody for corrupt purposes they can override it? Wait, what? I've had decades of the Executive Branch impinging on the Legislative Branch and there's plenty of arguments to be made in favor of untrammeled Executive power these days- far too many for my liking. I think this might be an argument for the Legislative Branch to impinge on the Executive Branch? I think that's what I'm reading and it's certain novel and a refreshing change of pace- but again, seems like a little bit of a stretch to me and a frankly weird curveball to undermine the Comey firing a bit. Doesn't make much sense to me.
Buried in the far back of the Mueller Report, we find a transcript of the President's written answers as requested by the Special Counsel. Unsurprisingly, they contain a lot of 'I don't recall' and 'I have no recollection of' which again, looks shady as hell but doesn't strike me as all that unsurprising.
So where does this leave us and the end of the day? What was all the shrieking about? This wasn't a silver bullet. Should be troubled by the lack of progress made toward securing our elections? Yes. Should we be troubled by the President's character flaws and the company he keeps? At this point- not really. He is who he is and if you're surprised by that, where have you been the past three years? Here's the thing: throughout all this narrative building Mueller shrieking, the Conservative blogosphere has been looking at the other side of the equation. With things like QAnon and Pizzagate out there in the world, it's easy to dismiss them yelling 'BUT THE DEEP STATE' as just paranoid conspiracy theories, but here's my thought: what if you take the Mueller 'Trump is a Russian Agent' yelling and add it together with the 'BUT THE DEEP STATE' yelling and divide by two- and maybe, somewhere in the middle you might end up with something that is fairly close to the truth of the matter.
I think the true picture is incomplete. Attorney General Barr is looking into the whole 'Spygate' thing. There's an Inspector General Report on any potential shenanigans that may have occurred in the aftermath of the 2016 election. I don't know if their reports are going to be released to the public, but if they are I think I'll probably have to read those as well to try and figure out what really happened. By the time that happens, I'm sure it'll be a moot point at the end of the day or maybe I just won't care by then- goodness knows making my way through the Mueller Report took a lot out of me- I don't know if I'd be up for one or two more of these things.
The TL;DR of it all: Disturbing, troubling, but I'm not honestly sure that anything blatantly illegal was done. I think you could make an argument to impeach, but it wouldn't go anywhere in the Senate and I'm not sure you could make a good argument and that's kind of a problem. You shouldn't have to persuade people about high crimes and misdemeanors, it should be pretty damn obvious to everyone from Neil DeGrasse Tyson right down to Cletus the Yokel on The Simpsons. I don't think The Mueller Report reaches that threshold. Maybe his testimony will shed new light on this stuff-- maybe new evidence will come to light to change what was in the report. But as of right now, it is what it is and what it is doesn't appear to be all that much.
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