The Truth Behind Troopergate
The only news in New York politics that's mattered for three months (and counting) is the bizarre hype surrounding the ho-hum charge that new white-knight governor Eliot Spitzer tried to plant a story about Senate Republican leader Joe Bruno's state-subsidized travel.
After decades of editorial-page barking in every newspaper in the state about the cesspool Albany has become, it was doubtless surprising to learn that the town's biggest scandaldeplored on one tabloid cover after anotherwas the alleged fixing of a few paragraphs, not in the fine print of a billion-dollar contract or in a pork-barrel add-on to the state budget, but in a front-page story this July in the capital's premier daily, the Times Union.
As most people know by now, Spitzer's aides had convinced the state police to cough up Bruno's embarrassing travel itineraries, which showed the senate leader hustling from private sit-downs with campaign donors and lobbyists to fundraising extravaganzas on the taxpayer dime. But what generated all the fuss were accusations that Spitzer's men had improperly used the state police as pawns in a political hit job. Polls indicate that most New Yorkers believe the governor knew more than he's admitted about his aides and their media maneuvers, but those polls also show that two-thirds of New Yorkers want state leaders to get back to real business, instinctively recognizing what it's taken three separate investigations to establishnamely that this much-ballyhooed "Troopergate" might be nothing more than bad manners or rough play. Only 12 percent in the latest Siena poll thought the Spitzer-Bruno spat was the "top priority" issue facing the state. In fact, my dentist asked the other day (as I sat immobilized in the chair ) whether it wasn't a good thing for Spitzer to be telling taxpayers that the senate leader was using a state helicopter to fly to fat-cat galas in Manhattana point of view that might provoke many nods of agreement, even by someone without a drill in his mouth.
Few New Yorkers are innocent enough to believe that politicians don't routinely scour the landscape for dirt to dish on other politiciansespecially ones who have called them, as Bruno did to Spitzer before the travel story, a "thug," a "bully," a "hypocrite," and a "rich spoiled brat." In fact, as the report by Albany District Attorney David Soares recently revealed, it was Bruno who started the ball rolling on travel scandals by denouncing a Spitzer fundraising trip to California in May, which prompted reporters to ask if the governor had used a state plane. The answer was no, but eyebrows soon arched when, just two days later, Bruno himself climbed aboard a state helicopter to fly off to a Manhattan fundraiser for the state GOP. When the Times Union pressed Spitzer communications chief Darren Dopp about that trip and another Bruno junket to a fundraiser on May 17, Dopp began collecting flight manifests and other documentsabout both Bruno's and Spitzer's tripsin anticipation of a Freedom of Information Letter (FOIL) that he expected to receive from the paper.
But Dopp's subsequent efforts to issue a press release or refer the Bruno flight information to investigators were nixed by his superiors, according to Soares. As shocking as it might seem, Spitzer involved himself in his staff's anti-Bruno machinations only long enough to say that he thought any use by his office of the flight itineraries "would be an unnecessary distraction"; he did not direct either the gathering or the release of the travel documents. When Dopp finally got a FOIL, he decided himself to give the accumulated schedules to the Times Union, and so the war began.
Soares concluded, like Attorney General Andrew Cuomo and Inspector General Kristine Hamann before him, that there was nothing illegalmuch less criminalabout all of the heavy breathing over Bruno going on in some quarters of the Spitzer administration. A no-slouch prosecutor who forced the resignation of State Comptroller Alan Hevesi earlier this year, Soares went a step further, telling reporters: "I do not believe there was a plot to smear Senator Bruno." He added that a continuation of the apparently endless exploitation of this crimeless controversy would be a "blatant attempt to avoid responsibility for the people's business."
The district attorney was clearly referring to the senate's announcement of a half-million-dollar investigation of its own, contracted to a Republican hit man from Washington, D.C., former federal prosecutor Joseph diGenova. Soares was no doubt also aware that the senate investigations committeewhich never conducted a single probe into the dozen or so major scandals of the Pataki administrationwould be hosting its third pointlessly partisan hearing about the Spitzer administration's supposed abuse of the state police within days of his report, and was promising much more to come. Compare that hyperactivity to the time, a couple of years ago, when Bruno and the committee simply shrugged their shoulders after it was revealed that the most powerful official in the state policea lifelong friend of the then Republican governor'shad taken the Fifth Amendment to every question put to him in a federal probe of the sale of paroles for campaign contributions.
Just as there's no sign that Bruno, whose senate majority has shrunk to two seats, will let his Spitzer jihad go, so too with the hyperventilating New York Post, whose favorite state political party is facing an Armageddon of sorts in the 2008 senate elections. The Paper of Rancorwhich has printed such sourceless front-page fantasies as a breathless account of Spitzer aides meeting in dark limousines parked on the side of the road in the dead of night to avoid detection by investigatorsburied Soares's findings behind another loopy Brady Bunch sex spoof.
As thin as the scandal itself has proven to be, the story behind it is a window into the new Albany, which Eliot Spitzer promised would change on day one, and which is convulsingin a way that's like nothing I've ever seen in 30 years of covering the state capitalover the first real challenge to its insider-party game in modern history. Spitzer's determination to take the senate away from the party that has controlled it for all but six months of the last 80 years is an electroshock to the state's political culturedisturbing not just to New York's Republican remnant, but even to the assembly Democrats, who, like prior governors of both parties, have protected and prospered from a divided legislature. What we are hearing in the high-pitched posturing over this scandal is the death wail of an incestuous bipartisan combine, threatened by a governor who starts his day with a 5 a.m. run and who knows, after eight years as attorney general and nine months as governor, what it takes to push his taut frame through a stiff Albany wind.
The man who turned what might have been a bruising but quick street fight into a protracted cold war is Albany's other new face, Andrew Cuomo, who was elected attorney general last year by promising to replicate Spitzer's eight-year record in that office. It is Cuomo's 53-page report on these dueling charges, released July 23, that is still framing this controversy.
Cuomo is an unmistakably awkward fit for a probe of these particular charges, since his own family has long been intimately associated with allegations of abusing state-aircraft privileges, and since he's achieved something of a reputation himself as a master at the art of shadowy handouts to reporters.
Twenty-five years ago, at the age of 25, the Kid Wonder managed Mario Cuomo's triumphant gubernatorial campaign, helping his father to push an incumbent Democratic governor (Hugh Carey) out of the race early; then to defeat, in the September primary, a New York City mayor (Ed Koch) who once led the polls by 25 points; and finally to overcome a death-penalty-advocating, multimillionaire Republican candidate (Lew Lehrman) in the general election that November. When it was all over, young Andrew became a "special adviser" to the governor, got a degree at Albany Law School, and became so immersed in the state's freewheeling political culture that he, his mother, or his siblings rode the friendly skies in state aircraftwithout the governora total of 62 times in the first seven years of the 12-year administration. One or more members of the family rode with the governor more than 700 times in the same periodafter which time, no comprehensive accounting of the family airline ever appeared.
The Daily News did break an "Air Cuomo" story in the 1994 gubernatorial campaign, revealing that over the course of a single year, the governor's wife and daughter had taken a combined 44 trips. A year after Cuomo lost, he settled a lawsuit brought by the state GOP and paid thousands to the state for his family's high-flying excesses. Ironically, Mario Cuomo also used the state aircraft to cement his cross-party alliance with Ralph Marino, who preceded Bruno as senate majority leader. Former Air Force colonel Karl Rodenhauser, who ran the state fleet under Cuomo, says now that the governor's chief of staff approved standby weekly flights for Marino, who was flown to Farmingdale, Long Island, where he lived and maintained a law practice, as soon as the senate session ended. Marino was such a Cuomo crony that he tried to block George Pataki's 1994 nomination, supporting a candidate who'd lost to Cuomo four years earlier by 33 points.
Stan Lundine, lieutenant governor for eight years under Cuomo, recalls the Marino shuttle, as well as the Cuomos' frequent-flier pattern. "Did we ever schedule a fundraiser and then come up with cover events to justify the use of a state plane?" he asks, addressing the question that Bruno's use of the aircraft has raised. "Sure. But I don't think we ever took a plane just to a political event." Lundine also sees the quandary Andrew faced in this investigation. "If he had arrived at a different conclusion," he says, referring to the attorney general's decision that Bruno's flights weren't improper, "he would have been subject to scrutiny because of his and Governor Cuomo's use of the plane."
In fact, the travel charges against the Cuomos didn't end in 1994. Shortly after Andrew Cuomo announced his unsuccessful campaign for governor in January 2001, it was revealed that, as the secretary for Housing and Urban Development in the Clinton administration, he'd billed the federal government for 25 trips to New York in 200021 more visits than he made to any other state. He'd also taken a $6,000 junket to Israelall ostensibly to prepare for his race for governor. However, neither that record, nor the "Air Cuomo" story, got in the way of Andrew attacking George Pataki for exploiting state aircraft in that campaign: "You cannot justify, ethically or legally, using taxpayer dollars to finance your political travel," he charged in 2001.
Young Andrew also earned his spurs in the 1980s as a source for negative news stories. He was heard braggingby none other than Bill Stern, Mario Cuomo's campaign-finance chair and economic-development czarabout "the contract hits" on opponents that he planted with enthralled reporters. "I heard him talk about it," says Stern, who worked in the 1982 campaign headquarters and in state government with Andrew. "The idea is to embarrass a person. He used it as a weapon against political enemiesor it might be used against your friends who were out of line. 'Contract hit' was a regular part of his lingo. He believed others did it, and that he was very good at it." (Cuomo's spokesman said that he'd never heard of the term, though Stern has been talking to the Voice about examples of Cuomo "hits" since 1984.)
With that kind of a track record, Cuomo might have thought twice about plunging into this thicket, especially since he'd been receiving unprecedented praise in the New York media for an extraordinary student-loan inquiry and other high- profile investigations. Instead, he jumped into the probe soon after the Times Union story appeared, nudged privately by Spitzer and asked formally by Bruno. Not only did he rush to launch the probe, but he finished it in only 20 days, with eight or nine investigators working around the clock. No one can offer a convincing reason for this extraordinary rapidity, other than to cite the office's claim that "faster was better."
In the wake of the report, the Post and others loudly complained that Cuomo hadn't interviewed Dopp and another top Spitzer aide involved in the Bruno travel review. Cuomo fed the conspiracy hysteria by saying that they'd refused to cooperate. The truth is that Cuomo's office didn't even ask to interview them until the business day before it released the report. When Spitzer's counsel said that the two preferred to submit brief sworn statements, Cuomo didn't insist or even go public about their reticence: He just rushed to release the reportflush with scathing criticism of the Spitzer teamon a Monday morning, the optimum timing if you're trying to jump-start the news cycle. Subsequent events suggest that had Cuomo been willing to wait, Dopp and company would have appeared to answer questions. When Dopp's attorney refused in early September to turn over some documents sought by another group of investigators still looking into this messfrom the state's public-integrity commissiona one-day deluge of stories and outraged editorials changed his mind, and he quickly gave the commission everything it wanted.
In any case, the result of Cuomo's rush to glory was a botched job.
He was supposed to examine both Bruno's possible aircraft abuse and Spitzer's alleged misuse of the state police, but his report doesn't mention the Bruno flights until page 44, and it spends almost as much space suggesting how to reform aircraft regulationswritten, by the way, by his own fatheras it does examining the senator's trips. While virtually everyone associated with the Spitzer administration was put under oath, including eight employees of the state police, only one of at least 18 people interviewed about Bruno was asked to give sworn testimony. Most of the Spitzer witnesses are named in the report, while none of the people interviewed about Bruno are identified. Indeed, Cuomo's office and Bruno still refuse to name the scheduler, the only witness from Bruno's office to take the oath.
For all the hoopla that resulted over Dopp not being questioned, no one has asked why top Bruno aides like Ed Lurie were never interviewed (Lurie is so political that he runs Bruno's senate campaign committee and joined him for at least one flight). And as outraged as the Post has been about the failure of Spitzer's staff to turn over their private e-mails to Cuomo (they did turn them over to Soares), no one's even noticed that the attorney general never asked Bruno or his aides for any e-mails. If, as Stan Lundine's experience suggests, last-minute state business meetings were set up to cover the senator's long-planned junkets to Sheraton fundraisers, and if Bruno's aides discussed that in e-mails, Cuomo apparently didn't want to know.
In fact, though Cuomo's report indicates that he knew when the meetings were arranged, it never divulges the timing, making it impossible for reporters and the public to figure out if those meetings were shams. Instead, Cuomo simply asserts that there was a legitimate state purpose for every one of the 10 trips Bruno took on state aircraft in the first six months of 2007. Just as Bruno has refused to reveal any of the details about these meetings, Cuomo's report respects the senate leader's preference for secrecy, even as his report reveals every exchange that occurred on the Spitzer side. John McArdle, Bruno's spokesman, told the Voice that Cuomo's lack of specificity about the meetings was "perfectly understandable," adding that there was "no need to make legislative meetings public"an unsurprising Bruno rejection of transparency that Cuomo apparently shares.
The rationale given by the attorney general's office for its half-hearted probe of the Bruno trips is that the regulations on "mixed" state and personal business flights were so "permissive" that it was almost impossible to violate them, so why bother looking too hard? Cuomo's investigators, however, failed to examine any of the overnight flights that Bruno tookat least two of which apparently required the state police to send a second helicopter down to the city the next day to pick him up and return him to Albany. Colonel Rodenhauser explained that the state aircraft routinely spends the night in an Albany hangar, meaning that two $6,000 round trips almost certainly occurred each time Bruno attended those evening Republican fundraisers on May 3 and May 17 and flew back to Albany the next morning. Since Bruno's last business meeting was at 5 p.m. on May 17, and he had no meetings of any kind scheduled downstate on May 18, the sole reason for the second round trip was political-a fact that neither Cuomo's nor Bruno's spokesmen contest. This appears to directly violate even the "porous guidelines" promulgated by Mario Cuomo and ratified later by an unofficial state ethics opinion.
That second overnight trip is also troubling. Bruno did have a 9 a.m. meeting at Aqueduct, the racing track in Queens, on May 4, the day after he attended a gala for the state GOP. But New York Racing Association chair Charles Hayward says Bruno asked to be taken on a tour of the facility that morning, just four days after the track ended its spring season, and the NYRA had to reopen a closed facility to accommodate him. The strange timingit might be smarter to see a track possibly slated for mothballing when it was actually operatingsuggests that the tour was deliberately arranged to dovetail with the trip Bruno already had planned for the party extravaganza. The 1995 ethics opinion requires that such trips-including the second round trip made on May 4must be for a "bona fide" state purpose.
Overnights aside, there was no reason to limit the probe to these 10 trips, especially if you wanted to determine whether there was a pattern of abuse on Bruno's part. A 2001 story said that he had used state aircraft 157 times since becoming majority leader in late 199410 times more than the assembly speaker.
Had Cuomo looked into this history, he might have found violations of law and the legal justification to obtain subpoena power for the probe. Instead, with Bruno's support, he has claimed after the fact that the Spitzer-appointed inspector general should have withdrawn from the investigation and referred it to Cuomo alone. That referral, they argue, would have transferred the inspector general's subpoena power in a "corruption" case like this to the attorney general, who otherwise doesn't have it.
But Cuomo clearly does have subpoena power in any tax investigationyet he chose, curiously, to ignore that inviting investigative trail. For even if Bruno's use of the aircraft met the state's minimal regulatory standards, as Cuomo concluded, it might well have been inconsistent with IRS requirements.
State travel guidelines say that a trip has to include at least one meeting involving a governmental purpose. But as Mario Cuomo's press secretary explained when news stories appeared about his flights, a 1985 IRS ruling "required that Cuomo and his family pay taxes on the value of trips that weren't made primarily for state business." (Emphasis added.) From 1985 through 1989, for example, the Cuomos were taxed on $22,686 worth of personal travel paid for by taxpayers under the provisions for "imputed income." In 1993, Mario Cuomo reported $5,660 in private trips on state aircraft and paid a third of that in taxes. But Bruno press secretary McArdle told the Voice flatly: "No, the senator didn't pay taxes." McArdle also used precisely the same word as Mario Cuomo's press secretary did an eon ago, insisting that the trips were " primarily for legislative business." But Andrew Cuomo's report rebuts any claim that Bruno's trips were first and foremost for legislative reasons. "On several occasions," Cuomo found, based only on an examination of this handful of Bruno excursions, "the legislative business constituted a minor portion of the day's schedule."
Had Cuomo simply applied the same tax standard that was used for the flights his father had made, he could have gained subpoena power for the probe, and perhaps identified illegal (if not criminal) actions by Bruno.
As tough as it was to pry on-the-record answers from Cuomo's office, spokesman Jeff Lerner, fully apprised of the details of this critique, did offer this response: "If you were in a room with everyone from the DA's office, the AG's office, the IG's office, and the governor's office, Wayne Barrettand Wayne Barrett alonewould be the only one who still believes, or ever believed, that Bruno's use of the state aircraft was illegal." Bruno's aide McArdle echoed Lerner, dismissing any notion that the overnight trips, for example, might be inconsistent with the regulations, which he said was "corroborated by the AG, IG, and Albany DA's office." While McArdle omitted the governor in his list of defense witnesses, Lerner's e-mail stressed Spitzer's apparent view of the legality of the flights, stringing together a series of quotes in the Soares report from the governor and two top aides. Actually, Soares wrote that Spitzer "informed Dopp that the law was so porous and, as such, Senator Bruno's acts were probably not illegal." It was, like that of the two aides, a first-flush reaction.
A third Spitzer aidewhom Lerner, not surprisingly, doesn't mentionhad a different take. Presented with the same Bruno itineraries, Peter Pope, an experienced prosecutor who is the governor's director of policy and led the attorney general's investigation into Alan Hevesi, says the office "had an obligation to report this matter to the inspector general." Indeed, Kristine Hamann, when she conducted her eventual inquiry simultaneous with Cuomo's, never did much of an assessment of Bruno's travel, obviously aware that as a Spitzer appointee, she should take a back seat to the independent probe of Cuomo's staff. No one has made the point more loudly than Bruno that the inspector general did little. And Soares devotes a single sentence in his report to Bruno's flights, saying simply that his office reviewed the aircraft use and "concurred" with Cuomo and Hamann "that no crime occurred."
Obviously, Soares limited himself to criminal matters in his examination of Spitzer's use of the state police, and he did the same with Bruno's trips. He left the door open on both lines of inquiry as to whether anything improper, unethical, or even illegal occurred (and he, too, apparently failed to consider the tax implications). The state's public-integrity commission, which undertook its own investigation weeks ago and is taking testimony now, will resolve the ethics question on the Spitzer charges. But since it is limited by law to probing executive misconduct, the commission is barred from looking at anything Bruno did. (A separate body, called the legislative ethics commission, has the exclusive power to probe senate or assembly wrongdoing. Controlled by the legislature, it has never shown a flicker of interest in this or any other possible wrongdoing. )
The fact is that, when all this is over, the Spitzer administration will have had to weather three independent probes, relentless senate hearings, and a tepid look into the matter by its own inspector general, while no one will have ever genuinely examined the senator's junkets, even though it is Bruno who is being probed by the FBI for collusive conflicts, and has been since 2006. This double standard will continue because the public-integrity commission has the almost impossible job of determining whether Spitzer and his staff tried to smear Bruno without ever crossing the legal line of its authority and determining whether Bruno did abuse his aircraft privileges. Though the Spitzer media campaign can't be a smear if Bruno was in fact living large on the public tab, the commission isn't allowed to consider the evidence that might buttress that case.
The professionals, like former federal prosecutor Linda Lacewell, who worked on the Cuomo report, were no doubt genuinely offended by what they foundparticularly what they saw as the misleading of the state police superintendent, Preston Felton, by Spitzer aide Bill Howard. The worst of the Spitzer-administration misconduct identified in the Cuomo report is the charge that Howard convinced Felton to produce the flight records by telling him that he had a FOIL well before the Times Union submitted one. But a close reading of the attorney general's report says only that "at some point," Howard "apparently" told Felton about the FOILstrangely uncertain language for so central a conclusion. And Howard, who did talk extensively and without counsel to Cuomo's office, is quoted in the Soares report as saying that he thought Dopp wanted the flight information only for internal review. He says he didn't mention a FOIL to Feltona version of events that is at odds with Felton's recollection. Assuming that Howard told Cuomo's staff the same thing, it's odd their report never mentions the denial. Soares also found no evidence that anyone in the executive chamber had any idea that Felton was operating under the misconception that he was checking these flights to service a phantom FOIL. Indeed, Felton didn't put all the records together in a package until the FOIL was actually received in late June. As trivial as this detail might seem, it's actually the heart of the alleged wrongdoing.
The other oft-repeated charge is that the state police "recreated" the itineraries, which was the loaded language used in Cuomo's report. The term suggests fabrication, though even Cuomo acknowledged that nothing was fabricated. "Recreation is a term of art," Glenn Valle, the state police counsel, told a senate committee last week, explaining that there would be nothing wrong with the police "retrieving" information they had. The itineraries on the Bruno trips that Dopp gave the Times Union were drawn from handwritten police notes that were, in Soares's view, subject to public disclosure. Valle said the police "simply filled in those itineraries" and "restored information." Valle, who was the counsel throughout the Pataki years and thus can't be considered a Spitzer tool, disputed the Bruno defense that challenged the validity of the police records and the decision to make them public: "How do you smear someone by reporting exactly what they did?"
Incredibly, Valle's chargesincluding his denunciation of Cuomo's report as "outright wrong" and "extremely unfair"got short shrift in the tabloids that are driving the story. Similarly, no one knows better than the press that it is commonplace for government agencies to assemble records like this when they are sought by reporters, and that Cuomo's attempt to characterize it as an illicit manufacture of documents is absurd.
It's impossible to diagnose the reasons why Cuomo leaped to such shaky and tilted conclusions, although his disastrously premature run for governor in 2002 revealed how determined he is to succeed his father. He clearly wants to run for the top job againmaybe not as soon as 2010, but certainly by 2014, and he will do so even if Spitzer tries to make himself our third three-term governor in a row. If that sounds speculative, remember that Mario Cuomo emerged as a gubernatorial candidate well before the governor he worked for, Hugh Carey, announced that he wasn't seeking re-election in 1982.
Strangely, the only person already promoting a Cuomo candidacy is Joe Bruno, who told The New York Sun recently: "If I had to guess, someone like Andrew, who is positioned where he is at this stage of his life, at his age and background and experience, he'll be a candidate." Bruno went on to say that Cuomo is "very personable, very bright, extremely articulate, he's a pretty good package"and also someone who would be more productive than the current governor. "We would get a lot of stuff done," Bruno said, adding that when Spitzer was attorney general, he "didn't scratch the surface" compared to Cuomo.
The seminal moment in the war between Spitzer and Bruno was the February election of Craig Johnson to a senate seat in Long Island. Johnson won a seat held by the GOP for decades, a crushing defeat for Bruno as well as for SEIU 1199, the all-powerful health and hospital workers union, which spent a fortune to mobilize an army for Bruno in suburban streets. Not only did Spitzer win that special election, his appointment of the districts Republican incumbent to a key post in his administration created the vacancy Johnson filled. Then Spitzer began entertaining vulnerable members of Brunos senate conference, particularly upstate senator John Bonacic, trying either to get them to switch parties or to take a job in his government, creating another winnable vacancy. Asked if this happened, McCardle said: It did happen, and is continuing to happen as we speak. The Times reported last week that the wooing of Bonacic was still going on, and that Bonacic introduced Spitzer at a recent fundraiser.
Eliot Spitzer is the only New York governor in modern history to try to take a legislative body away from the party that controls it. His predecessors, like Mario Cuomo, never raised money or recruited candidates for a serious campaign of change. Even more important than Spitzer's eagerness to do both is the high probability that he will succeed, partly because registration changes and national politics could make 2008 a big year for Democrats in this state. No one has to look any further than those threatening realities to understand why such a small dustup has been elevated to such a consuming conflict. The Republicans are trying to depict Spitzer as a tyrant who will use police powers to silence or defeat them, and they couldn't be happier to have someone with the most famous Democratic name in the stateCuomoas their witness and cheerleader. Cuomo had many honorable alternatives to the report he issued and the behind-the-scenes role he continues to play to juice up this farce. He senses that he may have overplayed his hand, but he is more concerned with saving face than rebuilding bridges. Having acted too quickly, he may now have to live with the consequences for too long, unable to transcend them despite all the other good work his office is doing. Spitzer, for one, is unlikely to forget what Cuomo has done.
The governor has already been more contrite than the missteps of his aides require. But Bruno has been making it clear for months that there will be no detente or progress on a host of other issues unless Spitzer accepts the bipartisan turf treaty that is the foundation of legislative life in a capital with a hundred billion dollars to distribute. If Spitzer doesn't bow to that presumption (and there is every indication that he won't), the Albany culture will continue to hound himincluding many Democrats who, like Bruno, see any fundamental change in the state power dynamic as a dagger in their chests.
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