“Slavery by Another Name,” a documentary based on the 2009 Pulitzer Prize-winning book by Douglas Blackmon, premiered this year at the Sundance Film Festival. The story was new to me: Between the Emancipation Proclamation and the beginning of World War II, tens of thousands of African-Americans were arrested on phony charges, slapped with massive fines they could not pay, and then sold into labor to some of the biggest industries in the country to work off their debt. I didn’t expect to learn that slavery essentially continued for decades after the Civil War. And I also didn’t expect – on vacation from my legal work advising WikiLeaks and Julian Assange — to bump into Attorney General Eric Holder. Having spent the week before Christmas at Fort Meade, Md., attending the Pvt. Bradley Manning hearing – Manning is charged with passing classified material to WikiLeaks — I knew what I had to ask him.
As the last of the audience settled into their seats, the woman in front of me turned and took photos of people behind me. It was subtle, but others looked their way and smiled, nodding in acknowledgment. Not subtle enough. I turned too. I noticed a smiling, handsome African-American couple two rows back. On many occasions, I’ve been asked in interviews to respond to Holder’s public statements about the U.S. government’s criminal investigation into Assange and WikiLeaks. But there he was, in person, just steps away. I could not pass up this opportunity.
In November 2010, Holder announced a full criminal investigation into WikiLeaks, aimed at prosecuting Assange over the release of thousands of cables that embarrassed the U.S. government by revealing candid discussions among diplomats and corruption and human rights abuse around the world. Since that time, we learned of a secret grand jury investigation in Virginia. WikiLeaks supporters’ Twitter accounts have been subpoenaed. Media reports have long speculated about Assange’s imminent indictment in the U.S., possibly under the Espionage Act. (Assange is currently under house arrest in the U.K. pending his appeal of a decision that he be extradited to Sweden to face sexual assault charges.) A key concern is the threat of onward extradition from Sweden to the U.S. where Assange – based on Holder’s earlier announcements – risks being prosecuted for his work as editor and publisher of WikiLeaks, activity that we believe is protected by the First Amendment.
Holder has refrained from making public comments about WikiLeaks of late, leading many to believe the U.S. might not prosecute Assange. But it was apparent during the Manning hearing that concerns about the U.S. seeking Assange’s extradition are justified. Repeated references were made to the relationship between the Manning proceedings and the Justice Department’s ongoing criminal investigation into Assange and WikiLeaks. Manning’s defense counsel stated explicitly that the Justice Department had an interest in plea-bargaining with Manning in order to get him to implicate Assange, and argued that the number of charges against Manning (particularly those carrying life imprisonment) was designed to pressure him into making a deal. Government officials seated behind the prosecution were suspected of involvement in the grand jury process, but refused to identify themselves to us or to journalists. One was later identified as the Justice Department lawyer responsible for the WikiLeaks-related Twitter subpoenas.
The grand jury is secret. Government lawyers at the Manning proceedings – a public hearing – refused to identify themselves or state their interest. Our appeals to military courts for full access to the Manning proceedings, the court documents and the evidence have been denied. The Australian government claims to have no information from the U.S. as to whether they will prosecute Assange and seek his extradition, but it does not appear to have asked for that information or sought any diplomatic assurances from the U.K., Sweden or the U.S. that Assange be able to travel home to Australia after the Sweden case is resolved.
WikiLeaks, the world’s most famous/infamous source of information, and its lawyers are, ironically, short on necessary information. Who better to ask for that information than the attorney general himself?
As the lights dimmed and the film began, I wondered: How could I speak to Eric Holder?
Soon, however, I was overwhelmed by Pollard’s compelling film. Casting a light on the murky period between the end of the Civil War and the beginning of the modern civil rights movement, the film documents how the practices of convict labor rendered the 13th Amendment’s protections meaningless for millions of African-Americans living in the South.
These facts come alive through Pollard’s interviews with the ancestors of African-Americans who suffered during this period, emphasizing how these practices are part of living memory. Among them is Dr. Sharon Malone, the attorney general’s wife. She speaks eloquently about her uncle, who was born nearly 30 years after slavery ostensibly ended, but was one of the thousands pulled back into the forced labor system. Her testimony is powerful, and makes clear that every Southerner’s life is touched by this history, whether black or white.
What struck me most watching the film was the shameful inaction of the federal government and, specifically, the Justice Department, in failing to prosecute those responsible or taking action to end these practices, which continued for more than 80 years after the supposed abolition of slavery. While considering the historical legacy of that shameful inaction, I began to think about Eric Holder’s legacy — and the irony of his support for a film about the need to look back in order to look forward. After all, the film laments government inaction on slavery at the turn of the century. Today we lament Holder’s inaction on torture.
Holder insists on looking “forward, not back” when it comes to accountability for torture, dropping all cases of alleged illegal treatment of post-9/11 detainees by the CIA and its contractors. (Interesting that Holder, the same man advocating a forward-looking approach, said in 2010 that if the Justice Department could not identify a law under which to prosecute Assange, they would create one.)
While CIA torturers receive immunity from prosecution, Holder just announced that the Justice Department has charged a former CIA agent, John Kiriakou, for allegedly disclosing information to journalists about a CIA agent who engaged in waterboarding during interrogations.
Holder does not prosecute U.S. torturers; he prosecutes those who speak out about U.S. torture. Will Julian Assange be next?
“Slavery by Another Name” received a standing ovation from the Sundance audience, and deservedly so. As the crowd filed out, I made my way over to Eric Holder. A young woman requested a photo with him, and I was asked by one of his Secret Service detail to take it. I did as requested.
Then I took the opportunity to ask the attorney general a few questions.
“Mr. Holder, I just wanted to say how powerful I thought your wife’s contribution was to the film and how great it is to see you here, as attorney general, supporting it.” My praise was genuine.
“Thank you, I am a very lucky man,” he responded, warmly and sincerely. I agreed.
I then explained that what struck me about the movie was the government’s unwillingness to take action. “What came through most for me was this sense of historical legacy.” I said. “As attorney general, do you ever think about how your time in office will be remembered?”
“Of course,” he replied, adding he is very conscious of the historical legacy he’s creating.
“That’s interesting,” I responded, “because I am a lawyer for WikiLeaks and Julian Assange.” Slightly taken aback, a flicker of recognition crossed his face. “How do you think history will reflect upon your treatment of WikiLeaks and Assange?”
The young woman who requested the photo gasped audibly, whispering, “Whoa, this is major,” to the person next to her. Others gathered closer to listen.
“Eric” instantly becomes Holder, and responds in the professional manner of a politician. “The release of confidential information is a very serious matter, and we have to draw the line somewhere.” As he spoke, I recalled a conversation at the Manning hearing in December with a senior national security reporter who admitted he felt the news media would be at risk if Assange were prosecuted. One wonders where Holder’s line will be drawn — and what it will mean for journalism globally.
Holder continued to emphasize the grave harm he believes the leaked cables caused to U.S. national interests and “even to countries that [Assange] would likely support,” but that he “cannot get into the detail of the harm caused.” These blanket but unspecified allegations about harm allegedly caused by WikiLeaks’ publications (and those by the New York Times, the Guardian, Der Spiegel, Le Monde, El Pais and numerous other newspapers worldwide) have been common in U.S. government statements.
“Then will the Department of Justice state publicly whether or not you intend to prosecute Julian?” I asked.
Holder’s answer was short as he walked away: “We will see.”
In Newsweek, Peter Boyer and Peter Schweizer explore the question of President Obama’s Justice Department’s failure to press any major criminal charges against Wall Street. We learn, distressingly, that “finance-fraud prosecutions by the Department of Justice are at 20-year lows.” Ex-Countrywide whistle-blower Eileen Foster, to name one prominent critic of the Justice Department’s inaction, is still urging the Justice Department to do something about her former colleagues, but to no avail. What’s holding them back?
Well, a lot of things. For one, criminal cases for finance-related wrongdoing are hard and complicated to prosecute. The Justice Department is stocked with a lot of people with experience defending financial institutions — including Attorney General Eric Holder, a former partner at Covington & Burling, which represents many of the worst of the mega-banks. Plus, curiously, a lot of Goldman executives and other Wall Street types keep donating lots of money to Obama! (Though less money than they gave him in 2008.) The simple answer is that Holder, and Obama, seem to think that while Wall Street did a lot of stupid, venal things that ruined everyone’s lives, those things were largely … legal. Obama said as much to Rolling Stone: “In some cases, really irresponsible practices that hurt a lot of people might not have been technically against the law.” He might be not entirely wrong! Lots of horrible finance industry practices were and are perfectly legal. But we’ll never quite know whether the line was crossed until we … actually investigate.
So it’s all the odder that Wall Street is so damn mad at Obama, right?
In the only slightly oversimplified narrative of the financial crisis and subsequent recession as you and I and most non-billionaires understand it, Wall Street blew up the world economy, then got bailed out to the tune of billions of dollars, and then resumed being hugely profitable and irresponsible as everyone else suffered through foreclosures, massive debt and mass unemployment. In this narrative, the government, led at various points by members of both parties, did everything in its power to maintain the status quo on Wall Street, while offering primarily temporary relief and various ineffectual half-measures to everyone else. Eventually the Democrats passed some form of “financial regulation” that largely has not yet gone into effect and that will not do much to stem or reverse the financialization of our economy. (The SEC is way, way behind on implenting Dodd-Frank and seems in no great hurry to finish.) The president eventually began noting the existence of mass outrage toward the financial sector, but he did little to actually address that outrage beyond proposing a new tax bracket for millionaires.
So, based on all that, it is very hard to see what Wall Street is so mad about! But as I explained earlier today, most of these rich financial industry titans are also dumb, spoiled children. If anything, the president’s failure to treat the chicanery and fraud that led to the crisis as crimes worth prosecuting had the same effect that his failure to prosecute the architects of Bush’s torture regime had: It emboldened the wrongdoers, who are now convinced that they never did wrong. In this environment, the public’s real and justified outrage at Wall Street is wholly inexplicable to finance types, who blame it on the media and Obama’s occasional rhetorical populism. (He is making people hate bankers by pointing out that people hate bankers!)
Now, in lieu of subpoenas and indictments, we have mild criticism — Obama’s occasional off-message mentions of “fat cat bankers” or whatever — and those mild criticisms set off hysterical waves of paranoia and self-righteous fury. Because no one was hauled off in chains, the people who wreaked so much havoc think it’s actually been established that they did not do wrong.
So Obama has now not succeeded in cowing or placating Wall Street.
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On Thursday, a group of well-connected and powerful men announced that the federal government and state attorneys general had agreed to a multibillion-dollar settlement of claims relating to falsified foreclosure documents. The image of former corporate lawyer-turned-Attorney General Eric Holder and Iowa official Tom Miller complimenting each other on their courage and bravery was a stark reminder of how little power foreclosure victims have in Washington. The terms of the settlement were still secret, but we saw hints of what is to come: The website set up to inform the public noted that homeowners may not know for up to three years whether they are eligible for help.
Rather than settling anything, this agreement is simply a continuation of the policy framework of both the Bush and the Obama administrations. So what, exactly, is that framework? It is, as Damon Silvers of the Congressional Oversight Panel, which monitored the bailouts, once put it, to preserve the capital structures of the largest banks. “We can either have a rational resolution to the foreclosure crisis or we can preserve the capital structure of the banks,” said Silvers in October, 2010. “We can’t do both.” Writing down debt that cannot be paid back — the approach Franklin Roosevelt took — is off the table, as it would jeopardize the equity keeping those banks afloat.
This policy framework isn’t obvious, because it isn’t admissible in polite company. Nonetheless, it occasionally gets out. Back in August 2010, at an “on background” briefing of financial bloggers, Treasury officials admitted that the point of its housing programs were to space out foreclosures so that banks could absorb smaller shocks to their balance sheets. This is consistent with the president’s own words a few months later.
In October 2010, Obama publicly revealed how he sees the mortgage debt crisis. “This is a multitrillion-dollar market and a multitrillion-dollar problem,” he said, “and we’ve only got so much gravel.”
“We can’t magically sort of fix a decline in home values that’s so severe in some markets that people are $100,000 to $150,000 underwater,” he continued. “What we can do is to try to create sort of essentially bridge programs that help people stabilize, refinance where they can, and in some cases not just get pummeled if they decide that they want to move.”
At the time, the President was referring to HAMP, the $75 billion program announced in March 2009 as the administration’s signature program to address problems in the housing market. HAMP had been created because Sen. Jeff Merkley of Oregon demanded some remaining bailout money be used to help homeowners, or he would withhold a critical vote on unlocking the authority for the administration to get more TARP money. Larry Summers sent a letter to Merkley offering both a debt write-down plan (“cramdown”) and the dedication of up to $75 billion of money to help homeowners, in return for his vote. In fact, administration officials had already decided that they would not pursue a debt write-down.
The settlement announced yesterday, whether you believe the $25 billion number (of which only $5 billion is actual cash), is one-third the size of HAMP. As Obama noted nearly two years ago, that’s just not very much gravel.
A more realistic solution to the problem was actually debated within the administration during the transition, in debates revealed by economist Laura Tyson at the Financial Times’ View from the Top Conference in 2011. She noted that top officials had to decide whether to engage in mass write-downs of debt similar to FDR’s programs in the 1930s by using tools such as judicial modification, or whether to allow millions of foreclosures to go forward. They chose the latter. The current foreclosure epidemic, in other words, is partially a policy choice.
Everything done subsequent to that decision has been designed to mask this essential policy choice. This settlement is simply the latest example. While the headline number on the settlement is $26 billion, the actual cost to the banks and benefit to homeowners could be far lower, depending on how this complicated system of “credits” will be allocated. The banks will in all likelihood be able to charge off activities they had already planned, such as not pursuing deficiency judgments, refinancing and loan modifications. Some of the money may wind up being be paid not by banks, but by investors, such as pension funds.
Moreover, when the banks have reached settlements with law enforcement officials, they generally don’t hold to them. The Nevada attorney general recently sued Bank of America for violating an agreements the state had made with Countrywide (once the largest mortgage originator in the country, now owned by BOA) to end various predatory practices. When you issue parking tickets instead of handcuffs for multibillion-dollar crimes, the crime spree continues unabated. And obviously, HAMP, which was originally budgeted at three times the size of this settlement, has been a complete catastrophe.
Undergirding all of the chatter about the settlement is a basic reality that is not acknowledged by the administration. There has simply been no thorough investigation of how the mortgage servicer market works, or how extensive forgery and fraud are. Banks routinely claim that few people have lost their home due to faulty foreclosures, and while that’s probably not true, we simply don’t know the extent of the problem. In effect, this settlement is a solution imposed on a problem yet to be diagnosed.
The next investigation
At the State of the Union, the president announced a new task force to investigate the abuses leading up to the mortgage crisis, as well as related tax and bank fraud questions. This force is a multi-headed hydra, led by officials from the Department of Justice and New York Attorney General Eric Schneiderman.
The initial signs aren’t hopeful; DOJ has assigned 55 people to the task force, including 10 FBI agents. During the S&L crisis, which was 40 times smaller that this one, roughly 1,000 FBI agents were involved in the investigation. To put it another way, given the $5 trillion of home equity lost in the crisis, DOJ has assigned one person for every $100 billion lost. It is as if Apple lost its entire cash horde of $100 billion, and the government assigned just one person to find out what happened.
But there has been a good amount of private litigation and effort already, so though unlikely, it isn’t absolutely hopeless that there could be some handcuffs. A good test case to see what happens next is to see who is chosen to head the task force on a staff level. Someone like former TARP Inspector General Neil Barofsky or Rep. Brad Miller of North Carolina would indicate some level of seriousness. A traditional Justice Department bureaucrat would indicate otherwise.
Settlement or no, the housing crisis isn’t going away. The entire mortgage market at this point is backstopped by the government, and even so, housing prices are sliding. The roughly $1 trillion of underwater mortgages and the destruction of the rule of law in the private mortgage market need to be dealt with, one way or another. And they will be, whether through a restoration of a healthy housing market, or through the end of broad homeownership as part of the American experience.
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While an apologetic Attorney General Eric Holder Jr. went before a Senate committee this week to talk about a failed gun-walking program, the National Rifle Association was gearing up its campaign to get Holder fired.
In a new, slick 1 minute and 55 second television ad flush with with Fox News footage, the NRA expressed outrage over the Bureau of Alcohol, Tobacco and Firearm’s gun-running operation known as Operation Fast and Furious. Under the supervision of ATF officials, the operation let guns get into the hands of criminals on both sides of the Mexican border. The NRA claimed Holder perjured himself before Congress and lied about what he knew about the operation and urged the White House to fire Holder. Holder has adamantly denied lying.
The NRA has homed in on Operation Fast and Furious in order to advance its agenda of undermining not just Holder but the president. The misguided operation, run by ATF officials reporting to the Justice Department, encouraged Arizona gun dealers to sell weapons to “straw purchasers,” with the hopes of tracing the weapons to the Mexican cartels. ATF lost track of many of the guns, and some surfaced at crime scenes on both sides of the Mexican border, including one involving the murder of Border Patrol agent Brian Terry last year in Arizona.
Bent on getting this latest ad circulated, the NRA is soliciting funds to air it, and has posted this on the website:
“Watch the video and see how Eric Holder’s lies are destroying freedom and costing lives. Please make a donation to help NRA-ILA air this video across America. And please, forward this video to family and friends!”
The group’s outrage over guns getting into the hands of the bad guys under Fast and Furious would be slightly more plausible if the NRA ever expressed any concern about U.S. gun laws that effectively armed the Mexican drug cartels with heavy weaponry.
The NRA’s critics note that the powerful gun lobby, based in northern Virginia, has essentially accomplished the same evil as Fast and Furious by lobbying hard — and taking legal action if necessary — to water down tough U.S. gun laws and regulations. The NRA is particularly determined to undermine its nemesis, the Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces gun laws.
The NRA has adamantly fought ATF regulations that require gun dealers in four Southwest border states to report sales of two or more assault weapons to one person within five days. The NRA also helped derail the confirmation of Obama nominee Andrew Traver for director of ATF, which has been in dire need of stability. The NRA opposes strict handgun control laws in such cities as Washington that have high rates of gun violence.
“I think the NRA has to have something to scare their members about and attacking Obama and more specifically Holder is part of that plan,”said Kristen Rand, legislative director for the Violence Policy Center in Washington.
Rand says the NRA has conveniently homed in on the guns in Operation Fast and Furious, while ignoring “the hundreds of thousands of other guns that have flooded Mexico and killed tens of thousand of Mexicans.” And she noted that the NRA has been mum about news in recent days that a similar ATF gun-walking operation — Operation Wide Receiver — was pursued under the Bush administration and Attorney General Mike Mukasey.
“They’re not upset about that,” she said. “They’re directly threatened by another Holder-Obama administration,” and using it to help fundraise.
Few contest the downside of Operation Fast and Furious.
“This operation was flawed in concept, as well as in execution,” Holder told the Senate Judiciary Committee on Tuesday. “And, unfortunately, we will feel its effects for years to come as guns that were lost during this operation continue to show up at crime scenes both here and in Mexico. This should never have happened. And it must never happen again. ”
“The American public needs to know the whole truth on this,” said NRA president Wayne LaPierre in a video last June. “The fact is, that brings us to the consequences, these guns are now, as a result of what they did, in the hands of evil people and evil people are committing murders and crimes with these guns against innocent citizens.”
The whole truth is that lax U.S. gun laws — supported by the NRA — are what have helped the Mexican drug cartels to arm themselves and slaughter law enforcement officers, rivals and innocent people.
“The NRA has been devoted to assure that our gun laws remain anemic, ” said Dennis Henigan, acting president of the Brady Campaign to Prevent Gun Violence. ”The NRA is not really interested in stopping the gun trafficking.”
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For the last few decades, activists have been warning that the severe U.S. drug sentencing policies instituted in the ’80s and ’90s have disastrous human consequences, particularly for minority communities. Starting with the Anti-Drug Abuse Act of 1986, the trend in federal U.S. sentencing policy was up, up and away: It established mandatory minimum sentences for all levels of drug offenses and, specifically, a 100-1 sentencing disparity between powder cocaine and crack cocaine offenses. This disparity is especially significant because 85 percent of federal prisoners sentenced for crack cocaine are black. The result has devastated African American communities across the United States. In the country that incarcerates the largest percentage of its population of any nation in the world, a majority of those prisoners — 60 percent — are racial minorities. Of the federal prisoners sentenced to prison terms for drugs, a whopping 75 percent are racial minorities. Some scholars have gone as far as to call the mass incarceration of African-American adults “the new Jim Crow.”
Advocates have railed against these unjustifiable inequities to no avail until Congress took one small step forward last year by passing the Fair Sentencing Act, which was signed into law by President Obama. The FSA reduced the disparity between crack cocaine and powder cocaine sentencing guidelines to 18-1, but it did not apply retroactively to prisoners already sentenced under the old 100-1 disparity. Now, U.S. Attorney General Eric Holder has backed the beginnings of a plan to further fix the broken sentencing system. In a new sentencing reduction scheme before the House of Representatives, federal prisoners already sentenced for crack cocaine offenses could be awarded an average sentence reduction of three years. If adopted, this plan would go the rest of the way to ease the baffling sentencing disparity between crack and powder cocaine. Over 12,000 prisoners could be effected by this change. In support of the reductions, Holder said, “There is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders.”
This change in policy would be a start, but it isn’t enough. First, sentencing guidelines are just that — guidelines. Unlike mandatory minimum sentencing, another broken drug policy that has been subject to searing scrutiny in recent years, judges are not required to abide by guidelines. They merely serve as suggestions for certain possible sentences within a range of minimums and maximums. While some judges may be anxious to mete out shorter sentences, many others may take no heed of the change in guidelines. Furthermore, there is simply no logical reason why people whose sole offense is the use of illegal substances should be subject to prison terms at all. The U.S. prison system is not a drug rehabilitation facility, and offers little to no treatment or effective counseling for re-entry in society. The reliance on strict incarceration to fix drug addiction merely creates an underclass of lifelong inmates, a revolving door between the streets and the prisons. If Congress is serious about correcting the harms of drug abuse, the money and the focus should be on creating programs that actually help addicts heal by addressing the reasons many of them turn to drugs in the first place: lack of education, lack of work, lack of available and affordable mental health treatment.
One of the oft-used arguments for the continued prohibition of crack and other similar substances is that their sale and use robs communities of otherwise productive members of society: Fathers and mothers, sons and daughters are lost to the effects of addiction. Particularly in impoverished communities, the correct response to the real problems of drug abuse cannot be to further rob them of their fathers, mothers, sons and daughters by making them prisoners of the criminal justice system instead of a substance. Mass incarceration for drug offenses is a classic, tragic example of the cure being worse that the disease. To truly address the problem of substance abuse, Congress must make sweeping, long-term changes to U.S. drug policy without relying on the shameful out-of-sight, out-of-mind approach of mass incarceration of American citizens.
Leslie Fenton is a 2005 graduate of the NYU School of Law. She is licensed in Louisiana and Illinois and currently runs her own family law practice in Chicago.
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U.S. Attorney General Eric Holder was a big fan of HBO’s gritty cop show, “The Wire.” So much so that he’s willing to use his political power to bring it back to life … which is just what some corrupt politician would do on “The Wire,” when you think about it. Man, I know everyone loved that show so much, but people really need to let it go already (says the person who is rewatching “Lost” on the one-year anniversary of its season finale).
When three of the former cast members — Wendell Pierce, Sonja Sohn and Jim True-Frost — stopped by the Justice Department to talk to him about protecting children from guns and violence (because these guys couldn’t get any cooler), the attorney general couldn’t help himself:
“I want to speak directly to Mr. Burns and Mr. Simon: Do another season of “The Wire’,” Holder said, drawing laughter and applause from the audience. “That’s actually at a minimum. … If you don’t do a season, do a movie. We’ve done HBO movies, this is a series that deserves a movie. I want another season or I want a movie. I have a lot of power Mr. Burns and Mr. Simon.”
Do you hear that? That’s not a damn request, McNulty, that’s an order!
First thing: Does the attorney general think those actors still have secret messaging routes back to the show’s creator? It’s like going up to Matthew Fox and telling him that Damon Lindelof needs to get off his ass and create a finale that makes sense. (Sorry.)
Also, can I just say that Holder has no idea what he’s talking about here, either. You can’t just turn “The Wire” into a film willy-nilly! I mean, they haven’t even been able to get “Arrested Development” off the ground yet, and that’s been off the air for way longer than “The Wire.”
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