Useful Idiots: DOJ Moves from Name-and-Shame to Name-and-Disrupt

/26 Comments/in , , , /by

In the Election Task Force presser at which DOJ also rolled out two operations against Russian foreign malign influence last week, Merrick Garland described that the investigation into RT’s efforts to hide its efforts in the US was ongoing. “The charges unsealed this morning do not represent the end of the investigation. It remains active and ongoing.”

Indeed, last week, Tim Pool (believed to be Commentator-2 in the RT indictment) revealed that he would assist in the investigation (presumably meaning he’ll sit for the interview the FBI requested).

The language Pool used — the emphasis on a voluntary interview, one echoed by Benny Johnson’s more equivocal statement about his response to a similar FBI invitation — suggests DOJ is treating Pool, and so presumably most of the other commentators described in the indictment, as media under DOJ’s recently updated media guidelines.

Not so Lauren Chen herself — or at least, not Tenet Media. After all, the indictment describes several Discord servers — a general one, one focused on “funders,” another on “producers,” and another for one of the commentators — that all seem to be part of Tenet’s overarching Discord server run by Chen. To get legal process on that, as they clearly did, prosecutors would have had to convince DOJ’s National Security Division head, Matt Olsen, that Tenet or Chen either aren’t media or fit into one of the designated exceptions to the media rule.

Prosecutors might do that through Chen’s (or her spouse, Liam Donovan’s) past work with RT, after such time as it had registered as an agent of Russia in 2017. Or, if DOJ could prove that Chen knew the Russians she was working for were just an extension of her pre-existing RT contract, that might also satisfy the exception for “a foreign power or agent of a foreign power.” But even Chen’s acceptance of US-bound payments via wire from “Turkish Shell Entity-1” described as, “BUYING GOODS-INV.013-IPHONE 15 PRO MAX 512GB” would likely reach an aid-and-abet standard for RT’s alleged money laundering.

According to the indictment, the many cut-outs via which she (and by association, the podcasters) were being paid, were visible to her. None were in France, where the fictional funder of the project purportedly lived. She was witting to the money laundering alleged in the indictment, which probably qualifies her for an exception to the media guidelines. Charging that money laundering may be one step in justifying a broader investigation into Chen, including one that extends into her other roles in the far right network at Glenn Beck’s show and on Turning Point USA.

This post, which I started last week, was going to be a post laying out how all of last week’s activities seem to be an attempt to move beyond DOJ’s prior approach of name-and-shaming foreign hackers, to a name-and-disrupt approach. Lawfare did such a post earlier this week, and Alex Finley did one focused on RT and Doppelganger.

But I’m going to post the part of that larger post focused on RT now, because State just rolled out the next step of this name-and-disrupt operation: sharing intelligence showing how RT has become a front for Russia’s broader intelligence operations.

The State Department revealed declassified US intelligence findings that suggest RT is fully integrated into Russia’s intelligence operations around the world and announced it is launching a diplomatic campaign to provide countries with information about the risks associated with RT activities.

“Thanks to new information, much of which originates from RT employees, we know that RT possessed cyber capabilities and engaged in covert information and influence operations and military procurement,” Secretary of State Antony Blinken said Friday.

A key finding from the new US intelligence is that, for more than a year, the Russian government has quietly embedded an intelligence-gathering unit within RT that is focused on influence operations globally. That activity has been part of US officials described as a big expansion of RT’s role as an arm and mouthpiece of the Kremlin abroad. The activity goes beyond propaganda and covert influence operations to even include military procurement, according to US officials.

The flyer from State laying this out lists cover operations in Germany, France, and Argentina.

DOJ presumably timed last week’s indictment to beat the 60-day prohibition on announcements that might effect an election. But it was presumably also coordinated with Anthony Blinken’s trip to Eastern Europe, whence he just returned.

It appears that rolling out the indictment did two things. First, it laid out how this works, how a persona sets up an allegedly witting front, like Lauren Chen, to effectively recruit useful idiots on Russia’s behalf.

But by unrolling the indictment last week, DOJ likely facilitated further investigation of the Tenet operation.

It’s likely, for example, that DOJ needs cooperation from the podcasters like Benny and Pool to pursue an investigation into Chen any further. At the very least, prosecutors would have to lock them into statements that they had no idea they were working for RT. Those statements might not be entirely persuasive, mind you, but such statements would be crucial to showing that Chen was part of the RT deception, part of an effort by an agent of Russia to spread their propaganda via unwitting cut-outs.

By rolling out the indictment in the way they did, DOJ gave all the podcasters an incentive to immediately claim ignorance, if for no other reason than to preserve their own brand. As NBC curated, several of the podcasters did claim they were victims, within a day.

Pool said, in part, in a lengthy statement on X: “Should these allegations prove true, I as well as the other personalities and commentators were deceived and are victims. I cannot speak for anyone else at the company as to what they do or to what they are instructed.”

[Benny] Johnson, also on X, said: “A year ago, a media startup pitched my company to provide content as an independent contractor. Our lawyers negotiated a standard, arms length deal, which was later terminated. We are disturbed by the allegations in today’s indictment, which make clear that myself and other influencers were victims in this alleged scheme. My lawyers will handle anyone who states or suggests otherwise.”

[Tayler] Hansen said, in part, on X: “These allegations come as a complete shock to me and the other hosts at TENET Media. I want to be as clear as possible, I was never directed to report on any topic and had complete freedom and control over my reporting at all times. I would never agree to any arrangement where I am not the sole person in charge of the stories I cover and content I create.”

[Dave] Rubin said, in part, on X:” These allegations clearly show that I and other commentators were the victims of this scheme. I knew absolutely nothing about any of this fraudulent activity. Period.”

[Matt] Christiansen said, in part, on X: “At no point has anyone ever directed me what to say or not to say, and I would never agree to anything otherwise. My videos and streams for Tenet are exactly the same as my videos and streams on my personal channels. Every word is from me and me alone.” [my emphasis]

And after they did claim to be victims, the FBI called them up and said, “how would you like to sit for a voluntary interview … you know, as a victim?”

This is why I’m way more sympathetic to Pool and Benny’s claims they’re victims than others, who rightly argue they had to have known something sketchy was going on: not because I believe they were that stupid (both could have been, but Pool, who hired Cassandra Fairbanks after she was already tainted as a Sputnik persona, has been swimming in these waters for years). But because DOJ set this up to highly motivate them to position themselves, publicly, as victims and then capitalized on that to take further investigative steps.

But this operation also served to disrupt Russian support of propaganda, which is one of the reasons I view the efforts rolled out last week as an attempt to disrupt ongoing efforts, rather than just an attempt to name-and-shame.

After all, the podcasters (Rubin and Benny had already moved on; the others had not) are out of a hefty paycheck. Tim Pool will either have to find some right wing billionaire to pay wildly inflated rates for his apology for Russia from here on out, or he’ll have to scale back. It might take some weeks to do that. He might even have to give up politicizing the local skateboard park.

By sanctioning RT, among others, upon release of this indictment, not just the Tenet podcasters, but anyone else in the US knowingly on the RT grift, has to drop their gig immediately.

Presumably, a number of other people are doing quietly what former weapons inspector Scott Ritter did quite boisterously last week. Ritter — who, last month, had his house searched — posted that the sanctions on RT meant he had to immediately drop his RT gigs.

Per his claims in a Substack post released since then, Ritter was getting nothing close to what the podcasters were.

Amidst revelations of multi-million dollar deals where influencers were paid $100,000 a week to produce video content, and on-air hosts given million dollar salaries along with other perks, my relationship with Russian state-owned media pales into insignificance, contracted as an outside contributor compensated with what now, by comparison, seems a paltry $250-280 per item published, with the total amount received amounting to less than 7% of my total annual income.

Apparently, my negotiating skills are lacking—rather than insisting that I would not consider any offer under $5 million, I was content with compensation that matched the industry “norm” of between $150-300 per item published. Earlier this year, when RT thought that my interest in contributing had waned, they offered to double the price paid per article; I declined, insisting that we adhere to the letter of our agreement.

And now having done that — having forced people who were being supported by RT to drop their gigs — partners around the world can turn to unpacking similar operations in their own countries.

There are, undoubtedly, other nodes like the Tenet one, both in the US and around the world. This one may have been particularly important to disrupt before the election, because of Chen’s involvement with Turning Point, which will have a key role in Trump’s GOTV.

But whatever she was doing, TPA has cut her off.

Discerning Russian Trolls Appreciate Truth Social’s Treatment of Fake Accounts

/21 Comments/in , /by

Today, the former President tweeted that his failing social media company, “IS GREAT. THE REAL VOICE OF AMERICA.”

A number of people suggested he was doing so in an effort to preserve value before he can start dumping the stock.

If it was, though, it seemed to come just as an early morning spike in the stock price started to collapse, even as other Truth Social executives have started unloading their stock before Trump can do so later this month.

But I was interested in the post for another reason.

The most interesting details from the Doppelganger dossier released with a takedown request last week pertain to how the Russian trolls described efforts by social media companies to police inauthentic content.

A media plan proposed targeting Ukrainian audiences on Facebook and Xitter — the administrators of which, the plan claimed, “have a pro-Ukrainian position” that leads them to “subject communities promotion pro-Russian narratives to strict moderation rules” — by spending at least four months building a following before expressing pro-Russian views.

They’re effectively building sleeper cells of trolling accounts to evade moderation of inauthentic content.

But other Russian trolls were undaunted.

The Good Old USA project would target Facebook, Instagram, YouTube, Xitter, and Reddit precisely because those channels were, “free from ‘democratic censorship'” (in scare quotes).

As Yael Roth testified to Congress last year, the efforts to build an election integrity function at social media companies in response to Russia’s 2016 influence operation were “fundamentally bipartisan.” But now, Russian trolls aiming to tamper in the 2024 refer to such moderation efforts as “democratic censorship.”

But even Mark Zuckerberg’s company was viewed with some suspicion. A different document described that Xitter was the only mass US social media platform which Russia could use, because Meta “actively collaborates with the National Security Agency.”

Xitter, the document predicted, would start policing content more closely as the November election approached.

By far the most interesting observation about which social media platforms were appropriate for Russian propaganda campaigns, however, is this one, which appears in a Guerrilla Media campaign to exacerbate polarization in the US, in part by complaining about the cost of supporting Ukraine. As other plans did, this one described ways to bypass the moderation on Facebook, Xitter, and YouTube, in this case, by making perishable accounts. It also described the limits on YouTube, which tends to scrutinize accounts once they accrue 100,000 subscribers (which may explain why Russia was so interested in paying Dave Rubin and Tim Pool, because they organically have ten times that).

But then there’s a redacted comment about “Candidate A,” the substitution used to refer to Trump throughout this dossier.

Except it’s not a comment about Trump. By context, it’s obviously a comment about his social media site.

Helpfully, the reference to Truth Social is not redacted in the affidavit itself.

SDA documents include a proposal for another campaign focused on influencing the United States, titled “The Guerrilla Media Campaign in the United States.” See Exhibit 9. 18 The Guerilla Media Campaign focused on exploiting the perceived polarization of U.S. society by focusing on eight “Campaign Topics.” As reflected in the proposal, SDA anticipated using social media profiles on Facebook, X (formerly known as Twitter), YouTube, and Truth Social but noted that with “Facebook, Twitter and YouTube, we need to create multiple ‘perishable’ accounts, primarily for the work with comments.” [my emphasis]

By context, the affidavit explains what distinguishes the social media platform of Candidate A, Truth Social: Unlike Facebook, Xitter, and YouTube, Truth Social doesn’t require perishable accounts to evade censorship.

Whenever Russian trolls wrote this, then, they perceived that Truth Social did not exercise the kind of moderation of obvious Russian propaganda as Truth Social’s bigger rivals.

Mind you, the other references to American social media platforms suggest that these Russian trolls don’t consider Truth Social to have the mass reach that Meta platforms and Xitter have. Maybe Truth Social wouldn’t be a failing social media platform if it were less friendly to Russian trolls pretending to be Americans.

“TRUTH SOCIAL IS GREAT. THE REAL VOICE OF AMERICA!,” Trump tweeted out the week after a report on how Russia exploits US social media platforms to spread propaganda.

Only, certain discerning Russian trolls find Truth Social to be particularly welcoming to Russian voices, even those only pretending to be American voices.

Doppelgänger Debunking: Monitoring Social Media Does Not Equate to Recruitment

/6 Comments/in , /by

As noted, I plan to do a more substantive piece on DOJ’s effort to disrupt Russian efforts to influence the election, but first want to debunk a few claims people are making about last week’s releases.

In this post, I debunked the claim that Lauren Chen is likely to have been targeted under FISA; FBI wouldn’t have needed FISA, when criminal process is easier to get.

There’s an even bigger error regarding something about the Doppelgänger materials released last week, traceable in significant part to this post and the screen cap from it, disseminated by others:

The screen cap comes from this passage of the affidavit supporting the take-down of a bunch of sites used by Russia’s Doppelgänger project. Gilbert and others have screen-capped primarily the part describing influencers (italicized below), without the part that directly followed, describing that Russia has a similar list of people who don’t support Russia, much less the part (bold below) describing that these were accounts were monitored to track public opinion.

66. SDA documents further reveal that SDA extensively monitors and collects information about a large number of media organizations and social media influencers. One document revealed a list of more than 2,800 people on various social media platforms like Twitter, Facebook and Telegram, spanning 81 countries, that SDA identified as influencers, including television and radio hosts, politicians, bloggers, journalists, businessmen, professors, think-tank analysts, veterans, professors, and comedians. When referring to politicians, the list often mentioned which U.S. state and/or political party they represent and the position they hold in Congress. The U.S.-based influencers accounted for approximately 21% of the accounts being monitored by SDA. On another list of over 1,900 “anti-influencers”14 from 52 countries, the U.S.- based accounts comprised 26% of the total accounts being monitored by SDA. I assess that “anti-influencer” indicates that the account posts content that SDA views as contrary to Russian objectives. Based on my review of other records obtained during this investigation, I know that SDA adds information captured through its monitoring efforts to dashboards. These dashboards analyze trends in public opinion and thereby measure the effectiveness of the malign foreign influence campaign based on its impact on public opinion. SDA’s content varies from project to project; however, it can include videos, memes, cartoons, social media posts, and/or articles. SDA’s content delivery also varies each campaign, but often relies heavily on social media posts driving targeted audiences to domains SDA controls, like the SUBJECT DOMAINS. [my emphasis]

In his story on the releases, Gilbert extrapolates from a different document that primarily focuses on using targeted advertising to attract social media users to Russian-made content, to suggest this list of 2,800 influencers might constitute those envisioned in a small section of the document as “collaborators,” though that section of the document doesn’t use the term, “collaborators.”

According to the Good Old USA project document, the Kremlin was seeking to work with influencers who are “proponents of traditional values, who stand up for ending the war in Ukraine and peaceful relations between the US and Russia, and who are ready to get involved in the promotion of the project narratives.”

Among the types of influencers listed as possible collaborators are actors, politicians, media representatives, activists, and clergymen.

The affidavit references one document maintained by the Social Design Agency, which is not included in the unsealed court documents, that contains a list of more than 2,800 people identified as influencers. While this list is global, US-based influencers account for around 20 percent of the accounts being monitored, including many US lawmakers, according to an analysis of the list by the FBI.

That is, in my opinion, a wild misreading of the material, not least because the document envisioning “working with influencers” includes passive ways to exploit pro-Russian voices, including the “rollout of real comments” from them.

Other even more inflammatory tweets have highlighted the same passage to claim that Russia is paying 2,800 people.

While it’s not clear that the FBI knows precisely what the Social Design Agency is doing with these lists, all it claims that they’re going is tracking these accounts — both pro and anti-Russian social media accounts — to “analyze trends in public opinion and thereby measure the effectiveness of the malign foreign influence campaign based on its impact on public opinion.”

There’s no claim the 2,800 people on the list are being paid.

Even if SDA were doing more, it would in no way signal full “collaboration.” An earlier report on Doppelgänger’s work (one I’m still looking for, to link), for example, described how Doppelgänger would exploit the way Elon Musk uses his Xitter account to piggyback on his visibility to magnify pro-Russian content with no involvement from him. Elmo is so predictable and so stupid with his Xitter account it requires no payment or even witting involvement to be exploited in such a way.

Similarly, there are any number of right wing members of Congress who oppose Ukrainian funding in significant part because Trump told them to; while some of them might be on the Russian payroll, the overwhelming majority are not, but they nevertheless produce social media content that is of enormous use to Russia. JK Rowling’s transphobic content similarly attracts the kind of engagement that could be usefully exploited for Russia.

The inclusion of anti-influencers on this list is a big tell that those on the influencer list are not all recruited. Indeed, my own Xitter account could be big enough and — because Musk has forced a virtual blue check on my account, increasing my visibility in algorithms — to be included on an anti-influencer account; Asha Rangappa, Tom Nichols, and Anne Applebaum are all people with credentialed anti-Russian views with more Xitter followers than me who are even more likely candidates. It often happens that trolls with their own blue checks will attempt to hijack my timeline to stir up fights; it takes aggressive blocking to prevent it.

In other words, it doesn’t take recruitment to exploit readily apparent algorithmic patterns. Even overt opposition can be harnessed, if such efforts are not aggressively combatted.

And there’s nothing in the affidavit, describing an effort to monitor public opinion, to suggest Russia is doing even that.

John Lauro’s Mike Pence Gateway Drug

/32 Comments/in , , /by

As I laid out last week, Trump’s lawyers want to make the entire immunity discussion about his January 6 indictment about Mike Pence; they had wanted to do so after the election. They argued in their status report that Jack Smith will be unable to rebut the presumption invented by John Roberts that discussions with Mike Pence are immune from prosecution.

[I]n Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”). [emphasis original]

As it became clear at last Thursday’s hearing that Judge Tanya Chutkan wasn’t going to let Trump delay until after the election, Trump’s attorney, John Lauro, made a number of desperate bids to — first — limit the entire immunity discussion to Mike Pence, and then limit that discussion to legal issues, not evidentiary ones. This seems to be an effort to prevent actual facts, including previously undisclosed ones, from being disclosed before the election.

Here’s how Lauro described it. All sides agree that the immunity decision treated conversations between the President and the Vice President as presumptively immune (though Judge Chutkan stumbled on this once). Lauro asserted that the standard the Supreme Court set on whether prosecutors could rebut this presumptive immunity was whether using conversations between the President and his Vice President would intrude on important presidential functions. If it would, those conversations would have to be immunized and, because the grand jury was exposed to them in the process of superseding the indictment, the entire indictment would have to be thrown out.

MR. LAURO: That’s what I’ve said, that that’s an official act.

So as a matter of — as an initial matter, the issue before the Court is whether or not the Government can overcome the presumption, whether or not they can show that there’s no way, no possible way, that the lack of immunity would result in an intrusion on an important presidential function.

They can’t show that. And if, in fact, the communications with Vice President Pence, which are all over this indictment, if, in fact, those are immune, then that entire indictment is improper and illegitimate. And that’s a gateway issue that your Honor needs to decide right away.

That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

A bit later in the hearing, Lauro argued that Judge Chutkan could first rule on the legal issues — the ones the Supreme Court already did rule on — and only then turn to the evidence.

MR. LAURO:  [T]he issues here, your Honor, at least initially, can be decided on a legal basis. Obviously, there’s some room for your Honor’s determination as to the timing. But the structure, the sequencing, makes perfect sense in terms of the way we proposed it.

That’s when he raised the election.

MR. LAURO: These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them. That would be an inherently unfair and inequitable process.

THE COURT: It’s not unfair in the sense that you don’t get an opportunity to address the issues. You’re just doing it in a different sequence. There’s nothing inherently violative of due process by the Government filing an open brief and your getting an advance look at their arguments, have a chance to respond and address them. The Government replies. And if you want to file a sur-reply, you can ask for leave to file a sur-reply. But there’s nothing inherently unfair in that. It’s just a matter of who goes first.

MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —

THE COURT: Ah.

Judge Chutkan dismissed the notion that any of this should be delayed in light of the election because it — Trump’s past action — is not a dispute about this election.

THE COURT: Let’s just — let’s just discuss what the sensitive time is. I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here. This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.

MR. LAURO: I’m not asking you to consider it. But the courts have routinely said that courts should not be drawn into election disputes. And there is an inherent unfairness in the legal process —

THE COURT: Oh, I am definitely not getting drawn into an election dispute.

MR. LAURO: Right. And what I’m saying is that this process is inherently unfair, particularly during this sensitive time that we’re in.

Then, after Lauro raised issues of discovery and grand jury testimony, he doubled and tripled down on his bid to keep this evidence out of the public view before the election, leading to this crescendo, before Judge Chutkan cut him off.

But for them to selectively decide how they want to portray their case before we move to dismiss is completely contrary to the Rules of Criminal Procedure. It shows fundamental unfairness never before seen in a district court.

And it’s exactly the kind of proceeding that the Supreme Court said should never take place, and it’s the reason that the Supreme Court, I believe, in part ruled as it did, that these issues are very important. They need to be developed with some legal care in a very transparent and careful way.

This is not behind-the-envelope — or back-of-the-envelope jurisprudence. This has to be done in a very, very deliberative way.

What we’re suggesting is your Honor deal with the legal issues first in accordance with the Supreme Court ruling and then turn to the merits of the evidentiary issues that need to be developed. That way, it’s structured. If your Honor decides — and your Honor may very well decide — that the information relating to Vice President Pence is not only presumptively immune, but immune, then that indictment has to be dismissed.

Why do we go through merits arguments on presidential immunity when as an initial matter the Court can dismiss this case right away? And that’s exactly what the Supreme Court said you should look at. Let’s deal with the gateway issues first. And that’s the way the Court structured the opinion.

THE COURT: Well, when the Supreme Court considered this case, Mr. Lauro, they had the original indictment in front of them, which set forth all the communications with the former vice president that are — that you’re talking about.

They could have ruled then that the indictment was so permeated with those kinds of contacts that it should be — that it couldn’t hold up. They didn’t. They sent it back to me to make certain findings, not just with regard to those communications, but with regard to all the allegations in the indictment.

So I’m not sure that I agree with you that as a matter of law I could just dismiss the indictment based on the Supreme Court’s — dismiss the superseding indictment based on the Supreme Court’s decision at all.

MR. LAURO: Of course you can. Because the Supreme Court — and the ruling is clear, crystal clear — has already decided that the communications with Vice President Pence are official acts within the outer perimeter of the presidential responsibility. That is the case law of this case right now.

The only issue with respect to Vice President Pence is whether or not they can overcome the presumption of immunity, which is an incredibly high bar. They have to show that under no circumstances, under no circumstances is there any intrusion with respect to the authority and responsibility of the presidency in light of those communications.

That’s an incredibly high bar. Your Honor can decide that as a legal issue guided by counsel. We can make whatever proffers are necessary.

If your Honor decides that that is immune, then the whole indictment craters. It goes away. Because the Supreme Court decision made very clear you can’t use immunized testimony with respect to an indictment or otherwise at trial.

So this is a logical way for the Court to deal with these issues. What they’re suggesting — and I don’t think your Honor is suggesting it, but asking questions about it — is that we leapfrog over the legal issues. We get —

THE COURT: That’s not what I’m suggesting.

MR. LAURO: No. I’m not suggesting you’re suggesting it. I’m suggesting that’s what they’re suggesting.

THE COURT: I actually don’t think that’s what they’re suggesting.

MR. LAURO: Well, they are in this respect: They’re suggesting they leapfrog into merits-based argument over all the official acts. Right? They’re going to do their big proffer.

All of that is wasted time if your Honor decides initially that the Pence communications are immune and they didn’t overcome the presumption.

We can avoid months and months of briefing by your Honor dealing with the gateway issue first. That’s exactly what the Supreme Court said you should be doing.

THE COURT: All right. I think I’ve — you’ve made your argument on that point.

There’s nothing legal available to Judge Chutkan that wasn’t already available to the Justices. There’s no conceivable way SCOTUS could have imagined Chutkan could carry out this inquiry without looking at the facts. And Lauro is misrepresenting SCOTUS’ concern with a jury seeing such immunized communications and a judge seeing them — after all, judges routinely weigh in on whether things like Speech and Debate communications are immunized, most recently in Scott Perry’s challenge to a warrant for his phone.

Now, Lauro may not be wrong that when SCOTUS reviews this after the election, they’ll agree that the bar is as “incredibly high” as Lauro suggests. We all thought he was batshit when he said the President would have this kind of immunity the first time, but he ended up rightly predicting that the Republican members of SCOTUS were that corrupt.

Here’s what the immunity decision actually said.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

But there are three underlying tensions here.

First, quite early on, in the first time Lauro presented this argument to Judge Chutkan, she described that she wouldn’t be doing what SCOTUS told her to do if she didn’t conduct a fact-based analysis. She noted, as she would later, that the Supreme Court had everything Lauro claimed she could rely on — the indictment — but they didn’t make the legal decisions he said she could make without reviewing the evidence.

But when she made that argument the first time, she noted that she could be reversed (this would include the DC Circuit) if she didn’t conduct this fact-bound analysis.

Then Judge Chutkan, whose original opinion seemingly stated basic facts inherent to the Constitution was reversed by a decision that dramatically rewrote the Constitution, repeated, again, that she could be reversed no matter what.

MR. LAURO: That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

THE COURT: I actually don’t think so, Mr. Lauro. The Supreme Court had the indictment before it. They decided — they ruled on these three categories. And certainly conversations with an existing vice president may be subject to the presumptive immunity that you talk about. But one of the things I have to decide is whether, based on facts presented to me by the Government, those conversations, those contacts, are somehow outside of his official duties.

MR. LAURO: I —

THE COURT: And I don’t think I can decide that as a matter of law. I think I would be — I would be risking reversal if I tried to decide that as a matter of law.

MR. LAURO: I would ask your Honor to reconsider —

THE COURT: I’m risking reversal no matter what I do.

Given the Calvinball the Supreme Court is playing with the Constitution, there’s literally no way she can avoid reversal by someone. So Lauro’s procedural complaint rings especially hollow. She’s likely to be reversed by somebody before this is over. I do agree she’s doing what SCOTUS told her, but even if she weren’t, all the normal incentives would be gone.

Plus, my guess is that Jack Smith will start from a different point, one Lauro never considered. The Supreme Court’s opinion assumed everything the President did was in the persona of the President. But the Blassingame decision that they pointedly did not address, at least, imagines that as candidate-for-President, nothing Trump did was an official act. When the President asks the Vice President to cast a tie-breaking vote to confirm a judge, he’s doing so as President. But when a candidate asks his running-mate to throw out 81 million votes, he’s doing so as a candidate, not a President.

And that’s something that Chutkan missed when she reminded Lauro, twice, that. “the original indictment in front of [SCOTUS …] set forth all the communications with the former vice president that are.” Not all the communications with Pence from the original indictment are in there. The superseding indictment took out several references Trump made, in conversations with Pence, to the Justice Department.

On December 29, as reflected in the Vice President’s contemporaneous notes, the Defendant falsely told the Vice President that the “Justice Dept [was] finding major infractions.”

[snip]

76. During the meeting, as reflected in the Vice President’s contemporaneous notes, the
Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?”

That’s important for two reasons. First, because it provides even further reason for Chutkan to conduct a fact-bound analysis.

But it also raises the question: What happens when Trump tries to reintroduce these references to DOJ? If he tries to use them to prove that Trump was speaking in his role as President, does that amount to a waiver of the immunity that Trump has worked so hard to get?

John Lauro worked hard to insist that everything involving Pence be excluded without closer review. But unless he invents a procedural reason to forestall DOJ’s memo on September 26, DOJ will get one (or two, with the reply) chances to lay out — before the election — how Trump tried to use his incumbency, and Mike Pence’s role as President of the Senate, to steal an election against from Joe Biden and the woman who currently is the President of the Senate.

The September 26 Brief We’ll Get in the Trump January 6 Case

/33 Comments/in , , , /by

As I laid out in this thread, Judge Tanya Chutkan has set a deadline of September 26 for Jack Smith’s team to write a brief explaining how the superseding indictment against Trump consists exclusively of private conduct. From news coverage (Anna Bower and Roger Parloff did a typically good write-up of the hearing), it wasn’t entirely clear to me what that brief would entail.

Here’s how Thomas Windom described it in Thursday’s hearing:

MR. WINDOM: So what would our brief and what would our approach look like? What we anticipate filing in an opening brief is a comprehensive discussion and description of both pled and unpled facts. What this would do would be to set the stage so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required.

THE COURT: Your proposal mentions the Government’s briefing would include a proffer about unpled categories of evidence. You just mentioned that. Can you be a little more specific — or is that what you’re getting to? — about what that would look like? I mean, are you talking about not just — not the evidence itself, obviously, but the form it would take, proffered by — in written form? What are we talking about?

MR. WINDOM: Sure. So our initial view on it is this. We didn’t want to get ahead of the Court to lay anything specifically out.

But here’s what we are — what we were thinking and what we wanted to discuss with the Court: We were thinking a comprehensive brief where we would set forth the facts. What we would — that part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its determinations.

We also in that brief, in addition to the facts, we would set forth for the Court why we believe that the conduct that is in the brief is private in nature and is not subject to immunity; and then with respect to the allegations in the superseding indictment involving the vice president, that the Supreme Court specifically talked about with respect to a presumption of immunity, why we believe that that presumption of immunity is rebutted.

We would — the benefit of us going first, which is what we are asking for, is that we would have everything in one place. The defense would know what the landscape looks like, as would the Court. And then we think that that would create a cleaner docket both for your determinations and also for any appellate court to review your determinations.

THE COURT: All right. So at this point, you wouldn’t anticipate proffering any actual evidence. It would be written submissions. And then, should I feel that I need further evidence, we would discuss that. Is that what you’re talking about?

MR. WINDOM: That’s right, your Honor.

Particularly given Windom’s reference to grand jury transcripts, that raised the question of how much of these “substantial number of exhibits” we’d get to see. The answer, per Windom, is that the existing protective order would govern.

THE COURT: How much of that information do you anticipate is going to be under seal?

MR. WINDOM: So that’s a good question. We don’t know the specific answer to that.

But I do know this: A year ago, we spent a considerable amount of time going through a protective order and making sure it could stand time. Paragraphs 11 and 12 specifically deal with this situation the defense counsel has raised. It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.

We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.

Here’s the operative language from the Protective Order.

11. The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.

12. Any filing under seal must be accompanied by a motion for leave to file under seal as required by Local Rule of Criminal Procedure 49(f)(6)(i), as well as a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Effectively, then, Windom imagines that many of the exhibits would be submitted under seal, and there would be a fight about what gets released publicly, perhaps not unlike the process that has unfolded before Judge Cannon.

But Judge Chutkan would have the final say.

“If You Are a Psycho and You Want to Make Headlines”

/92 Comments/in , , /by

JD Vance has gotten a lot of deserved criticism for the offhand way he dismissed the Apalachee School shooting.

If you are a psycho and you want to make headlines, you realize that our schools are soft targets. And we have got to bolster security at our schools.

[snip]

I don’t want my kids to go to school in a place where they feel like you’ve got to have additional security. But that is increasingly the reality we live in.

[snip]

We don’t have to like the reality that we live in. But it is the reality that we live in. We’ve got to deal with it.

Trump, of course, famously told the families grieving after a shooting in Perry, Iowa, “It’s just horrible, so surprising to see it here. But have to get over it, we have to move forward.”

It’s not just that JD’s proposed solution is to box everyone up in aquariums like the Secret Service has done to Trump, but the way in which both men want to pray (or feign prayer, in Trump’s case) and move on.

Compare that to how Trump’s own people are treating his own shooting.

Vance, of course, didn’t blame some “psycho who wanted to make headlines” for Trump’s shooting. Instead, he blamed Joe Biden.

And Trump’s top propagandist, Stephen Miller, won’t shut up about Trump’s shooting.

 

Trump’s people want people to obsess about his own shooting, a month ago, even while minimizing the impact of a shooting that killed four, including two kids. That’s true, even though all the evidence to date suggests that Thomas Crooks shares many similarities with school shooters like accused Georgia shooter Colt Gray, including a fascination with previous school (and in Crooks’ case, presidential) shooters.

Even given all of the Secret Service’s failures, Donald Trump was not a soft target, like schools are. But ultimately he, too, was  vulnerable to an assault rifle in the hands of a disturbed young man hoping for notoriety.

Trump and Stephen Miller and JD Vance don’t want to get over that shooting attempt, and the murder of Corey Comperatore. They need Trump to be more special than all the kids gunned down in their schools. They need Trump’s shooting to have a meaning they won’t ascribe to the murder of children in their classrooms.

And yet Trump is no more special a victim than the teenagers killed in Georgia.

Stop Obsessing about Kamala Harris’ (Polling) Bumps

/70 Comments/in , /by

I’m going to defend Jonathan Karl, who described ABC’s poll showing a six point lead over Trump as within the margin of error. Here is Dan Drezner’s complaint about Karl’s comment, which is similar to that of many other people.

Take, for example, Sunday’s ABC News/Ipsos poll of the national race. It showed Harris leading 52%-46% among likely voters, a six-point lead that was outside the margin of error. Given the closeness of the race, a national poll showing Harris ahead seems newsworthy.

That, however, is not how ABC’s Jonathan Karl chose to frame it:

Karl says that Harris’ lead is “just barely outside the margin of error,” which is just a weird way to describe one of the few polls where someone has a statistically significant lead. Karl could have simply pivoted from the poll result to talk about how it’s still very close in the Electoral College — but he didn’t. Instead, he described a poll in which Harris had a significant lead as a toss-up.

It’s absolutely right that this poll is outside the margin of error (it is unchanged since before the convention). But Karl is right that the race is much closer in swing states, where voters have been flooded with Trump attacks on Harris for weeks now.

I think Democrats are telling themselves a wildly overoptimistic story about this race. I’m grateful Kamala and her campaign manager keep warning that she remains the underdog in this race.

That’s because this race is unlike any normal race. That’s true not just because Harris is a mixed race woman, though both her gender and race should raise concerns that the polls are overestimating her support (we literally hear stories about Republican women wondering if their spouses will learn for whom they voted). But it’s true because Kamala is not yet halfway through her race, and she’s running against a former President over 90% of the way done.

Pundits are measuring this odd campaign rhythm according to normal rules, such as that conventions bring a bounce (neither did this year) or that Labor Day marks some line in a sand about the final stage of the race.

As one example, both Frank Luntz…

And Nate Silver…

Pointed to this single Michigan poll of 600 possible voters to defend their argument that the Vice President has not gotten a bump from the convention. Neither of these men — a Republican partisan and a guy whose gambling habit may be influencing his analysis — are reliable sources.

And this is a particularly bad poll on which to base such judgments. Polling in MI has been pretty shitty going back two decades (though it is true that Trump has underperformed in many of them). It took WDIV/Detroit News five days to release this poll as compared to one day for their July poll. It was all done post-RFK endorsement of Trump (and as such could reflect RFK’s Trump-leaning vote moving to the former president), but before his bid to be removed from the ballot failed. Because of Michigan’s significant Arab American population, it is the swing state most likely to be influenced by Biden’s failures on Israeli policy. The August poll has a Likely Voter category (the one they report) and a Definite Voter category, the latter of which Kamala leads by 1.6%.

And as my former blogmate Dana Houle (who has run statewide campaigns in MI) noted, this poll delays release of crosstabs, and when they released theirs in January, they showed wildly unlikely results (results equally inconsistent with July’s poll).

More importantly, both the WDIV poll and the ABC one show two things that many polls are reflecting: First, while overall support for the candidates may look the same, the nature of their support is changing, with a gender split growing for each.

More curiously, that’s happening even as Kamala Harris’ favorability is going up. Even Joe Biden is on course to tip over into favorable ratings by election day!

That’s also happening as the electorate, at least in the short term, is becoming more female, more diverse.

What’s going on with the race is that Trump has a ceiling of support. While more men may be saying they’ll vote for Trump, Trump is not getting more popular.

And so he needs to do something to increase Kamala’s negatives (the success of negative ads may explain the narrower polling in swing states, but Trump’s future ad payments may indicate he’s blowing the money it would take to keep that up).

And therein, I think, was the intent of the Arlington Cemetery stunt — where Trump’s people, invited in by a few people who lost family members in the Afghan withdraw — took video from the gravesides of people whose family did not give consent, and did so after physically shoving a cemetery staffer.

This is the Benghazi playbook. Trump’s attempt to politicize an Afghan withdrawal that he played an instrumental role, according to his own former National Security Adviser, in making chaotic. This is, as everything with Trump is, a planned stunt coordinated with the House GOP.

House Speaker Mike Johnson (R-La.) announced that Congress will honor the 13 American service members killed in the attack by presenting their families with the Congressional Gold Medal on Sept. 10.

“Congress has a duty to ensure these sacrifices are never forgotten, and it is my distinct honor to announce that Congress will bestow the families of these 13 heroes with the Congressional Gold Medal — the highest award Congress can present to any individual or group,” Johnson said in a statement released last week.

The ceremony, and remarks by a bevy of Republican lawmakers, will take place at the U.S. Capitol Rotunda the same day as the presidential debate between Harris and Trump.

Like Trump’s planned attack on Biden incorporating documents altered by DOJ, and like his hosting of Tony Bobulinski in October 2020, Trump is hoping he can use the debate to stage a Reality TV event that gives right wingers a hook for the remainder of the campaign.

The reason why right wingers still complain that 51 former spooks said, truthfully, that the Hunter Biden laptop looked like an Russian information operation is that it undercut Trump’s Reality TV show; Trump even tried to use that as his stunt for the debate with Biden.

Here, though, Trump doesn’t have the two to four years on which both the Hunter Biden laptop and the Benghazi attacks built. Plus, the Arlington stunt has begun to backfire, most notably with John McCain’s son publicly endorsing Kamala in response. If Jamie Raskin succeeds in getting answers from DOD about what happened before the debate, it risks upending Trump’s hoped-for attack by demonstrating the contempt in which he holds service members. This risks turning into yet another story on how Trump believes service members are suckers and losers.

There’s one more thing that remains unsteady in this race: The great disparity in most polls between statewide and presidential polling (one exception out today, CNN’s, shows at least two state races — the Senate races in AZ and PA — that are not remotely credible). That may reflect misses in the modeling of the race more generally.

Kamala Harris has not gotten the polling bumps where pundits are trained to look for them.

But even as they watch for those signs closely, they’re not contemplating how other nearly unprecedented movement might shape the race.

Update: One more point about the weird timing of this race. USAT has a poll (which finished fieldwork on August 28) showing that Kamala has significantly narrowed the margins on the two topics Trump wanted to run on: the economy and immigration.

Harris also has made inroads on which candidate would do a better job handling important issues.

  • On the economy, voters’ top concern, Trump was favored over Harris by 6 percentage points, 51%-45%. That’s an asset, to be sure, but it is less than half the 14-point advantage he held over Biden in June.
  • On immigration, an issue that energizes Republican voters, Trump was favored by 3 points, 50%-47%, down from the 13-point preference he had over Biden.

She has narrowed that gap, even while she’s still rolling out policy proposals, such as new tax credits to support small business formation.

Harris’ proposal, released on Tuesday, calls for significantly expanding the tax deduction for start-up expenses from $5,000 to $50,000, while also setting the goal of 25 million new small-business applications during her first term, according to a Harris campaign official granted anonymity to describe details of the plan. The plan also proposes reducing barriers to getting occupational licenses and developing a standard tax deduction for small businesses.

There’s a famous line Andy Card used when discussing the Iraq War in 2002: “From a marketing point of view, you don’t introduce new products in August.”

Whether by necessity or design, Kamala can offer news events like this for the next several weeks. And this one sets up a solid contrast before the debate, in which Trump will be forced to defend tax cuts for billionaires over support for small businesses.

Trump Wants to Hide His Attempt to Assassinate Mike Pence from Voters

/49 Comments/in , , , /by

In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

Jack Smith doesn’t propose a schedule (thereby avoiding any claim he’s trying to push pre-election developments), but he’s ready to get this process started right away. He does want Judge Chutkan to make determinations regarding immunity first and foremost. He cites Chutkan’s own order and SCOTUS’ remand order to justify that.

The Court has indicated that it intends to conduct its determinations related to immunity first and foremost. See, e.g., ECF No. 197 (Order denying without prejudice the defendant’s motion to dismiss the previous indictment on statutory grounds and specifying that he “may file a renewed motion once all issues of immunity have been resolved”). The Government agrees with this approach, both because the Supreme Court directed such a process on remand, see Trump v. United States, 144 S. Ct. 2312, 2340 (2024), and because the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal citations omitted).

Trump, by contrast, wants to stall any consideration of immunity until December 13 by first litigating a challenge to Jack Smith’s appointment that Aileen Cannon approved but which conflicts with several binding precedents in the DC Circuit (and which Trump pointedly didn’t try before Chutkan last fall, when he submitted all his other motions to dismiss).

Trump-appointed Judge Mark Scarsi rejected Hunter Biden’s similar attempt to challenge David Weiss’ Special Counsel appointment in the wake of Judge Cannon’s ruling as untimely, and there’s good reason to believe that would be the likely outcome here, even before getting to the binding DC Circuit precedent.

You need look no further than Trump’s description of what he wants to challenge in the superseding indictment to understand why Trump wants to delay this fight until December: As I predicted, he wants to have the Mike Pence allegations thrown out.

In addition, while continuing to strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune—including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors—President Trump may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence, along with other potential key threshold motions. Namely, in Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” (emphasis added)).

To be sure, he’s not wrong to challenge the inclusion of the Pence allegations. Nor is he wrong in his view of how central Pence is to this indictment (though he overstates when he claims it would moot all else; the fake electors plot might survive the excision of the Mike Pence allegations).

As I explained, Justice Roberts raised the conversations with Pence specifically. But as I also explained, that is one of the shrewd things Jack Smith did in superseding the indictment: he stripped out all other things that obviously fit under Roberts’ guidelines, leaving only Trump’s efforts to get Pence to throw out the votes of 81 million Biden voters and when Pence refused, Trump’s action — a tweet — that almost got Pence assassinated.

Trump may well succeed in arguing that he can’t be prohibited from asking Pence to overturn the results of the election so the two of them could remain in power because any such prohibition would chill the normal conversations between Presidents and their Vice Presidents. That is simply the absurd logical result of Roberts’ opinion: that a President can order his Vice President to steal an election because any prohibition on doing so would chill the authority of the President.

But if Jack Smith has his way, Trump will have to make that argument — once, probably in a court filing in October — before voters go to the polls in November.

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

A Manufactured Fight over Incumbency Hides Trump’s Fascism

/88 Comments/in , , , /by

Thinking of Trump in terms of presidential administrations — reading this race as a fight over incumbency — is a category error that serves to hide the threat Trump poses to democracy.

Yet a slew of reviews of the DNC have adopted that rubric in an effort to declare that Kamala Harris has positioned herself as a change candidate treating Donald Trump as an incumbent.

I first saw this argument from NYT’s Shane Goldmacher. Then, in response to a Tim Murtaugh tweet complaining about Harris, Josh Marshall wrote this column, in which he opined, “there’s little doubt that [Kamala making Trump the incumbent] is an accurate description of the campaign we are in the midst of.” Then Byron York wrote this nonsense plea for Trump to define Kamala (over a month after she joined the race) in which he claimed that her campaign argued, “the bad things that have happened in the last few years are the work of Donald Trump and not the Democratic president and vice president.”

Goldmacher adopted the rubric of Kamala as a change candidate from two sources (if not from the six paragraphs where Trump’s team complained about it). First, a misrepresentation of the directionality of the chants adopted from rally-goers and the secondary of two slogans chosen by the campaign, preferring “Forward” over “Freedom.”

With chants of “we’re not going back” ringing through a convention hall and her campaign’s “A New Way Forward” slogan plastered outside, the vice president is making a bold bid to position the same Democratic Party that now holds the White House as bringing a fresh start to the country.

[snip]

Forward has been the watchword for Democrats in Chicago, as the party embraces its most future-leaning posture since Mr. Obama’s first campaign in 2008. Delegates and supporters have circulated a new poster designed by the artist Shepard Fairey, who made Mr. Obama’s famous “Hope” poster in 2008. The refreshed Harris one features the word “Forward” at the bottom.

Even if you prefer “Forward” to “Freedom” (and ignore how much more central the latter has been to Kamala’s imagery), it still doesn’t invoke presidential administrations. Rather, it contrasts reactionary policy to moderate progressivism. Political movement does not require incumbency.

From there, Goldmacher invests his misinterpretation with great significance using the same tools that most mediocre campaign punditry masquerading as journalism does: polling.

The battle over the mantle of change is especially significant at a moment when polls show a sizable majority of Americans are unhappy with the state of the nation’s affairs.

Former President Donald J. Trump had established a clear edge as the candidate who would upend the status quo when he was still facing President Biden. He was the insurgent; Mr. Biden was the incumbent. But now Ms. Harris, a 59-year-old who would make history as the first female president, has altered the dynamics of a contest that had previously pitted two men seeking to break the record of the oldest president.

[snip]

In a New York Times/Siena College poll this spring of battleground states, an overwhelming 69 percent of voters said that major changes were needed to the country’s political and economic system — or that the system needed to be torn down entirely.

The problem for Democrats was that only 24 percent of voters thought Mr. Biden would do either of those things.

But recent polls of swing states in the Sun Belt show that voters do not view Ms. Harris the same way they do Mr. Biden. While far more voters still see Mr. Trump as more likely than Ms. Harris to make major changes — 80 percent to 46 percent — they are more divided on whether he would bring the kind of change that they want.

Exactly the same share of voters — 50 percent each — said Ms. Harris would bring about the right kind of changes compared with Mr. Trump. [my emphasis]

That is, Goldmacher is interested in this for horserace reasons. The electorate is disaffected, ergo whoever can adopt the mantle of change can win the election.

Like I said: building entire stories around polling makes for facile punditry.

The claim that Kamala is running as a change candidate fails once you look at policy. Goldmacher claims that, “she is trying to differentiate herself, both stylistically and with some new economic plans.” The story he links, claiming it describes an effort to “differentiate herself” from Joe Biden in fact quotes Kamala in ¶3 describing the economic vision she presented as one belonging to a third person plural, we. “One — ours — focused on the future and the other focused on the past.” Kamala did that in a speech where she repeatedly talked about the success of the Biden Administration, we.

And, today, by virtually every measure, our economy is the strongest in the world. (Applause.)

We have created 16 million new jobs. We have made historic investments in infrastructure, in chips manufacturing, in clean energy. And new numbers this week alone show that inflation is down under 3 percent. (Applause.)

And as president of the United States, it will be my intention to build on the foundation of this progress.

This situates the movement that Goldmacher has spun, with no evidence, in terms of administrations, as a joint movement, Joe Biden and Kamala Harris, together pursuing policies focused on the future. Moreover, the story Goldmacher links admits that,

Much of Ms. Harris’s agenda represents an expansion of policies proposed by Mr. Biden in his latest presidential budget and during his re-election campaign.

This gets to one of the core things I think is leading people to get distracted about who is the incumbent. Journalists, especially those at NYT, largely ignored Joe Biden’s policy successes. They were too busy writing the twelfth Joe Biden Old story of the day to bother themselves with policy. And so simply because Kamala is new and younger and better able to pitch the very same policy — or natural extensions of that policy — all of a sudden journalists are labeling it as new, as Kamala’s effort to distance herself from Biden. Kamala is and will increasingly (especially assuming the Fed will cut interest rates next month) benefit from Biden’s successes, and the journalists who were too lazy to talk policy the first time will label it change. But that’s something that arises from journalistic laziness, not any effort by Harris to distance herself from Biden.

This is apparent even in right wing attempts to insist on continuity. When Byron York claims that Kamala is trying to distance herself, he cites a campaign video listing her accomplishments as VP.

Then came the section on Harris’s vice presidency. It claimed that she 1) capped insulin costs for older people, 2) helped replace lead pipes and provide clean water to communities, 3) helped create 16 million jobs, 4) fought gun violence, 5) “traveled the world to strengthen our national security,” 6) helped unite NATO in defense of Ukraine, and 7) “led the fight for reproductive freedom.”

Four of those things — insulin costs, gun violence, supporting NATO, and fighting for reproductive freedom — have been central in Kamala’s future policy promises; three figured prominently in her DNC speech. To a significant extent, Kamala claims she wants to continue the unfinished business of the Biden Administration.

Byron’s real complaint (as well as that of Murtaugh) is that Kamala is not capitulating to Trump’s primary digs against both Biden and her — inflation and immigration.

The two biggest items left off the list just happen to be the two biggest concerns of voters in 2024. One is Harris’s role in the disastrous Biden economic policy that helped feed inflation and made it far more difficult for millions of people to buy the basics of life, such as groceries. The other is Harris’s role in the even more disastrous Biden policy on the U.S-Mexico border, in which the administration allowed more than 7 million unvetted migrants to stay in the U.S. after crossing the border illegally.

As we saw in the North Carolina speech, when directly addressing actual inflation, Kamala would and did point to the ways that Biden has tamed it (which is what will lead to that interest rate cut next month). But on top of that, she’s promising ways to bring cost of living down, such as a child tax credit that failed under Biden but would become possible if (and only if) Democrats somehow keep their Senate majority after Ruben Gallego replaces Kyrsten Sinema.

Nor is there a discontinuity on immigration. Kamala is addressing immigration precisely the same way Biden did: by talking about how Trump tanked a bipartisan deal to fix it.

And let me be clear — and let me be clear, after decades in law enforcement, I know the importance of safety and security, especially at our border. Last year, Joe and I brought together Democrats and conservative Republicans to write the strongest border bill in decades. The border patrol endorsed it. But Donald Trump believes a border deal would hurt his campaign, so he ordered his allies in Congress to kill the deal.

Well, I refuse to play politics with our security, and here is my pledge to you. As president, I will bring back the bipartisan border security bill that he killed, and I will sign it into law.

You may not like that dodge. This effort to flip Trump’s favorite campaign issue back onto him may have limited success. But that’s not change. It’s more continuity.

And it goes to a point that Marshall makes as he puzzles through why there may be a sense that Trump is the incumbent. Trump is still acting like he’s president.

[T]here’s another paradoxical way that Trump himself laid the groundwork for this campaign, and made it possible for Harris to turn his own political heft against him. The centerpiece of Trump’s post-presidency is the wicked conceit that he never stopped being president at all.

[snip]

He still calls himself president. He demands and universally receives that billing from his followers.

He demands to be treated as president. More importantly, his demand for and policing of absolute loyalty is precisely how he was able to order the GOP to tank the immigration bill.

Immigration is not the only legislation that Trump tanked — a renewed effort to pass the child tax credit is another.

But the most lasting testament to Trump’s power as president, not mentioned by any of these men, may be the most important electorally: The decisions his hand-picked judges dictated to the American people. That starts with Dobbs, a policy on which both Trump and Harris believe he should get credit. Trump wasn’t president in 2022, but his judges were still dictating policy to half the country.

And it’s not just SCOTUS. By November I hope Kamala’s campaign points to all the other policies — student loan relief, a ban on non-competes, environmental regulations, and others — that Trump’s judges have vetoed to deprive Joe Biden of policy wins. Trump remade the way judges judge, blasting Stare decisis, and allowing a small number of judges in Texas and the Fifth Circuit to dictate policy for the entire country.

Which is one of the reasons I care about this: because so much of Trump’s lasting influence is about his lasting attack on rule of law. The insistence that this is about incumbency obscures the real threat Trump poses to democracy, whether or not he’s president.

Take this crazy Goldmacher paragraph.

For nearly a decade, Mr. Trump’s bulldozing approach has been premised on the idea that the nation was staring into an abyss and only urgent upheaval could save the country. The question for Ms. Harris is whether she can frame Democrats keeping power in 2024 as a break from that dark and divisive era.

It is true that Trump has been claiming that “only urgent upheaval could save the country.” But that was a fascist trope. It wasn’t true and even if it were, none of the policies Trump pushed would do anything but enrich people like him. Journalism should do more than observe that he made those false claims; it should explain why they’re false.

In the very next sentence, though, Goldmacher asserts that the challenge for Kamala (again adopting the dumb poll-driven assumption that she’ll only win if she is the change candidate) is by offering, “a break from that dark and divisive era.” What “era”? By reference, Goldmacher must mean that the near-decade in which Trump has told fascist lies is the “dark and divisive era” (though Trump’s racist birtherism started long before that). But it’s not an era. It’s a fascist belief, a means of exercising power, a means of dehumanizing your political opponents, one that had huge influence, but one that with the exception of the political violence it fostered, only held sway over a minority of the country (albeit a large one).

Look at how Goldmacher obscures this dynamic in the polls he cites. Of the 80% who responded that Trump would “make major changes,” 32% actually answered that he would, “tear down the system completely.” That’s fairly consistent with the 36% of people polled who believe that the changes Trump would make would be, “Very bad for the country.” (Those numbers are, respectively, 23% and 30% for Harris.) This is not a question about change. At worst, it’s a question about polarization, those who buy Trump’s fear-mongering against those who value democracy. For the 30-plus percent who believe Trump would destroy the country, it may well be a question about fascism. And in a piece where Goldmacher calls a man who launched an “insurrection” an “insurgent,” ignoring Trump’s assault on democracy while discussing those numbers is malpractice.

Trump’s assault on democracy also pervades the issues that Marshall points to in his attempt to understand this dynamic.

Marshall’s best example of Trump pretending that he remains President — that he continues to meet with heads of state — obscures the likelihood that when Viktor Orbán and Bibi Netanyahu meet with Trump, it served a multi-national effort to replace American democracy with authoritarianism. Trump is not meeting with Orbán to discuss possible policy towards the EU, he’s meeting with him as a key ally in a Christian nationalist project, one intimately tied to Putin, one committed to ending the Western liberal order.

Marshall situates Trump’s bid for revenge — which he claims is Trump’s entire platform — as a continued obsession about his ouster.

Trump’s entire platform is retribution — retribution for his 2020 defeat, which he lacks the character to recognize, and retribution for what he considers his mistreatment during his term as president.

[snip]

[A]t the most basic level it’s about the past, relitigating, being made about, wanting to fix things that happened in 2017, 2018, etc.

But even there, I think it’s a misstatement. Trump does pitch this as “revenge.” But the word is designed to obscure the degree to which even before his 2016 election, Trump led his mob to expect that he would use government to criminalize any opposition. Lock her up was the goal, not just beating Hillary at the polls. The word revenge is Trump’s way of legitimizing that assault on rule of law: it covers up how he criminalized not just Hillary Clinton and Hunter Biden but also those who deigned to investigate him. It also undermines — is intended to undermine — the legitimacy of all his criminal prosecutions, sowing doubt that he really is just a fraud conning his followers. Using the word “revenge” is in fact a false claim that he didn’t start this, when even his first impeachment was an effort to do just that.

Of course, revenge is not Trump’s entire platform. There are other key ingredients, like tax cuts for people like him. But the other foundational policy in his platform is a draconian approach to immigration, one of two reasons why Murtaugh is so desperate to claim that Harris is dodging her role in the Biden Administration.

If Trump were to win, a fascist definition of citizenship (including an assault on birthright citizenship) would serve as the excuse to “deport” (or at least to round up and detain) broader swaths of the population. More importantly, the constant efforts to inflame voters about immigration — particularly crimes attributed to “illegals” — lays the groundwork, is intended to lay the groundwork, not just the kind of fearmongering politics that failed in the past, but for the kind of Internet-mobilized right wing thuggery first tested in Ireland (including, but not limited to, the Dublin riot) and then further perfected after the UK’s Southport stabbing, with the unabashed involvement of one of JD Vance’s biggest backers, Elon Musk.

This effort from Trump’s team to falsely claim that Kamala is trying to distance herself from the Biden Administration is only partly about policy. It is, just as importantly, about laying the groundwork to stoke political violence when electoral politics fails.

Look, I get it. There are reasons why it’s easy to interpret this moment as a fight over incumbency.

  • The nearly unprecedented situation, which original pitted two former presidents against each other
  • Kamala’s continuation of the successful Joe Biden policies the political press ignored because they were too busy writing their 137th Joe Biden old story
  • The ongoing damage Trump has done since he left the presidency, without the incumbency of the office, both with court decisions like Dobbs and with successful efforts to undermine political compromise
  • Kamala’s repackaged response to Trump’s fascist threat as a way forward

The last one is the one people aren’t seeing. But it’s right there in her speech, as it was in the speeches of all of the Republicans who endorsed Kamala at the convention. Kamala’s Freedom agenda — even her Forward agenda — is in significant part an attempt to protect democracy and rule of law.

And with this election, and — and with this election, our nation — our nation, with this election, has a precious, fleeting opportunity to move past the bitterness, cynicism and divisive battles of the past, a chance to chart a new way forward. Not as members of any one party or faction, but as Americans.

[snip]

In many ways, Donald Trump is an unserious man. But the consequences — but the consequences of putting Donald Trump back in the White House are extremely serious.

Consider — consider not only the chaos and calamity when he was in office, but also the gravity of what has happened since he lost the last election. Donald Trump tried to throw away your votes. When he failed, he sent an armed mob to the U.S. Capitol, where they assaulted law enforcement officers. When politicians in his own party begged him to call off the mob and send help, he did the opposite — he fanned the flames. And now, for an entirely different set of crimes, he was found guilty of fraud by a jury of everyday Americans, and separately — and separately found liable for committing sexual abuse. And consider, consider what he intends to do if we give him power again. Consider his explicit intent to set free violent extremists who assaulted those law enforcement officers at the Capitol.

His explicit intent to jail journalists, political opponents and anyone he sees as the enemy. His explicit intent to deploy our active duty military against our own citizens. Consider, consider the power he will have, especially after the U.S. Supreme Court just ruled that he would be immune from criminal prosecution.

Kamala is running on democracy just as much as Biden did in 2020. It just looks different, because she has more successfully wrapped it in a bipartisan flag. Even there, there’s real continuity (don’t forget that one of Biden’s most important speeches about democracy in 2022, one that had a real impact on the election, was at Independence Hall).

Largely enabled by Trump’s ongoing effect — again, especially on Choice — Kamala has just found a way to make democracy matter more personally, more viscerally.

Kamala is not eschewing the incumbency she has Vice President. On the contrary, she is running on a continuation and expansion of Joe Biden’s successful policies (even if journalists are missing that). And she is running, just as Biden did, on defeating both Trump’s electoral bid but also the threat he poses to democracy itself.

Update: Swapped the featured image to show that Murtaugh continues to bullshit about Kamala distancing herself from the White House.

Update: Corrected Southport/Southgate.

Ukraine, Russia, and the Long Shadow of Nuclear Proliferation

/37 Comments/in /by

A Cold War History and a Too-Hot Future

A view of the Maidan, the year before the invasion.

It is hard to overstate the significance of the square at the heart of Kyiv, Ukraine, now called the Maidan Nezalezhnosti. The stones of the Maidan have silently endured generations of trouble and fights over what Ukraine should be. Every few decades, starting with the collapse of the Soviet Union, students and activists have felt the need to cover it in tents and banners and protest signs, and then their own blood, resisting government oppression and rampant corruption.

This is not primarily because of their own political class, or their own societal strife. It is because of their terrible next door neighbor, Russia.

The Past As Prologue

The Revolution on Granite

In 1990, right before the world’s sociopolitical system came apart, Ukrainians were one of many peoples protesting, rejecting the interference they’d faced from the Soviet Union all their lives. Along with their Baltic Neighbors (Estonia, Latvia, and Lithuania) They created a human chain of millions of people across these countries in a line. In Ukraine, it stretched from Kyiv to Lviv, over 300 miles of bodies held together, hand to hand. It was as if everyone was waiting for their bread, but the bread was their goddamn political freedom. It was a unique and striking political protest, but it was also dangerous.

The Russian empire, in the form of the Soviet Union at that moment, had made it clear over generations that they’d kill these people without a thought, but these people were willing to risk it. At the end of the protest, they won, and the Soviet Union fell. From Tallinn to Kyiv, and beyond into the wider Soviet world, so many people protested in so many ways, that the Soviet Union came apart. Moscow lost control, just as the Russian empire had as well, nearly a century earlier. In Ukraine Prime Minister Vitaliy Masol resigned, and shortly thereafter, Ukraine became a true independent nation. In 1990, the Maidan was called October Revolution Square, but after these events it would become Maidan Nezalezhnosti: Independence Square. Ukraine was born a free country, ostensibly to chart its own course into the 21st century.

The 2004 Orange Revolution

But the Russian attention persisted, ebbing and flowing with administrations and corruption scandals. Years later the square would again fill, first becoming the home of the 2004 Orange Revolution, and then, at the tail end of the Arab Spring revolutions in 2013, the square became the home of the Euromaidan Protest. The Ukrainians looked westward to escape the stifling influence of their corrupt and overbearing neighbor.

Scenes from Maidan Nezalezhnosti, after the government fell.

By 2014 the Ukrainian people, especially the young people, were again having to tell the world they were done with the Russians. They wanted to be free. They chanted and carried banners by day, and slept in the square at night under the Ukrainian sky.

A clock, lined with memorials for fallen protestors in Maidan Nezalezhnosti, summer 2014

They built a tent city. It was terrifying and jubilant. I visited their city within a city on the Maidan, shortly after their Russian puppet president had been forced to flee. I saw the kitchens and sleeping places, the weaponry they’d captured from their government and turned back on the troops attacking them. There were memorials they built to their dead, and flowers, flowers absolutely everywhere. It was spring in Ukraine. But despite the spring, Christmas decorations still hung on the street furniture, left over from the beginning of this tiny war of great consequence.

Yanacovich’s fake galleon for parties.

The young people even took over the ersatz king Yanucovych’s palace, Mezhyhirya, complete with a room full of sets of medieval knight’s armor, a bowling alley, boxing ring, a fake galleon for parties, and a zoo full of too many poorly-kept animals. The zoo included many large animals and rare birds kept in inhumane conditions, pushing Yanukovych at least one more circle down in Hell when he gets there.

It is to this day the weirdest place I’ve ever been, and I’m from Los Angeles.

Ukraine turned west after the Euromaidan protest, and Putin couldn’t have that. Within months he invaded and took Crimea. He moved like a gangster with no mandate beyond pointing a gun at his neighbor’s head. The world let him do it. The objections would a few editorials, some weak sanctions, and not much more. But it should have been much more, because promises are the power of international relations, and promises, old promises, were being broken.

That’s a Lot of Nukes

When the kids packed up the tents from the Maidan back in the 1990s, Ukraine was, by the happenstance of the Cold War, gaining independence as the third largest nuclear power in the world. It went Russia, USA, then Ukraine. There were housing thousands of the former Soviet Union’s nuclear warheads. This was a problem for everyone, including Ukraine. The next several years were the unwinding of the Cold War, and it was dirty and corrupt and strange, for everyone, not just Ukraine. But also one of the most hopeful moments in modern history. Maybe we weren’t all going to die in nuclear fire after all. Young people all over the world had to plan for… a future? That was one of many new and uncomfortable feelings of the early 90s.

The Ukrainian experience exemplified all of the contradictions of the end of the Cold War, struggling to find itself amid corruption and power plays, both internal and international. It was the chance to emerge from Soviet oppression, to be its own nation, to find itself within the community of nations. But the process was delicate, and never simple, given the nuclear weaponry and the century or more of looting and oppression the Ukrainians had faced.

It is not a good thing for a country to have terrible financial problems, a broken society, and enough nuclear weapons to end civilization several times over.

The Ukrainians knew this as much as anyone did, but some of the leaders and the people wanted to keep at least a few of those weapons to make sure the Russians didn’t ever come back. They were not afraid of the Americans, or the Europeans, they were afraid of Russia — of the Russians coming back. That was always clear, and always rational.

The Budapest Memorandum being signed by the four primary parties

Much of the world, but most importantly the United States, didn’t want unstable countries to have nukes. Several other former Soviet states also had nukes, but they gave them back to Russia without as much fuss. It took several years to resolve the issue in Ukraine, because Ukrainians spent some time not so sure about giving up their radioactive security blanket.

So four years into this potential crisis, the Americans just paid Ukraine to give all their nuclear bombs to Russia. All three countries, plus the UK, sat down and hashed out a deal. It’s called the Budapest Memorandum, and it said if Ukraine gave up all of the bombs, these three other nations would see to Ukraine’s security. If anyone came to threaten Ukraine, the US, Russia, and the UK were obligated to defend Ukraine in war, equipment, actual boots on the ground — whatever it took. Ukraine did not hold out for the word “guarantee” in the security agreement they got for handing back the nukes to Russia. Maybe they should have, but in the end, it’s just words, isn’t it?

With this done, the former Soviet republics, including Ukraine, also signed the Nuclear Non-Proliferation treaty, saying they would never seek to have nuclear weapons. The Budapest Memorandum probably made the world a better and safer place at a precarious time. It was one of the highlight moments in the history of keeping humanity from setting ourselves on fire like idiots.

But Russia never stopped meddling in Ukrainian politics, and the Ukrainians never stopped hating it.

Broken Promises

Because of this history, what’s at stake in Ukraine right now is different from every other conflict, however tragic and awful they may be. It’s not just the lives of innocent Ukrainians, or the geopolitics of Eurasia, but the course of humanity’s nuclear future. Because promises made have become promises broken, and broken nuclear promises concern us all.

The hope that filled Maidan Nezalezhnosti in 2014, just like 1990 and 2004, was that what people wanted for themselves could matter. That they could have a fate that wasn’t just determined by what distant rich old men in charge of so-called great powers thought they should have. Later that year, Putin answered their hopes by breaking Russia’s promises and invading and annexing Crimea. He threw away the commitments made in Budapest in exchange for all those nukes, right there on the world stage.

The other signatories of the Budapest Memorandum, including the US, just let him do it. This is what a nuclear agreement was worth: some hand-wringing, some sanctions, a news cycle, a funny segment on Last Week Tonight. It got a few think pieces about the history of Crimea and Where It Really Belongs.

But the spirit of the Maidan has never left the Ukrainians. They fought the Russians on the peninsula, and kept fighting right up to the full scale invasion in 2022. “I need ammunition, not a ride,” Zelensky famously told the world that February, or really, he told the Americans (and maybe the UK?), the people who had signed the Budapest Memorandum, the people who had promised to protect them in exchange for giving up their power to end our world.

And with all this, we are back in the hot end of the Cold War, being fought by people who weren’t even alive when the Cold War supposedly ended. But wars like this, wars of identity and autonomy, have an annoying tendency to never really end. Perhaps this one won’t until the last nuke is torn apart and thrown into the last pit to decay for the rest of the life of the solar system.

Those old nukes make this war a different from all the other wars, genocides, and atrocities crowding in on our attention these days. Despite the gallons of ink spilled on it, it isn’t ultimately about Zelensky being a good guy, or European fear of invasion, or even Good against some narratively archetypal Russia Being Evil. All of that is window dressing, like the Ukrainian flags hanging outside all the civic buildings around Europe. In the long run, it isn’t even about a moral stand, even if that is the politically convenient way to talk about it. It’s a terrible time on Earth in terms of wars and genocides right now, but the conflict in Ukraine is different. Not worse; it’s all too bad to be ranked. But the consequences of our failure to honor the Budapest Memorandum could be more terrible than we have imagined. They could be the end of our era on our little blue planet.

Ukraine gave their nukes back to Russia, and were betrayed. For everything we’ve said about standing with Ukraine, and their right to exist, or their crops feeding the world, or their millennia-old story as a nation, none of that is what history will remember. What happens to Ukraine will determine the state of the international order, and possibly whether everything that calls itself a nation is going to be clamoring to get their very own fleet of radioactive world-enders.

Because if Ukraine goes down, there’s one message: if you don’t want to be completely dominated or destroyed by any country larger and more powerful than you, you have to have nuclear weapons. Does anyone imagine Ukraine would be having any trouble with Russia at all if they could be putting radioactive air bursts over St Petersburg and Moscow?

They would not.

Ukraine isn’t about Ukraine at the scale of human history. It’s about whether we want to continue having lots of people on Earth, or just spend the next thousand years LARPing the Fallout games.

Thusly the first lesson of the 2014 invasion of Crimea was don’t trust the Russians. Maybe also don’t trust the Americans and the UK, to always and immediately have your back. But as that conflict has progressed to now, another lesson has emerged: if you don’t want to be crushed by your powerful neighbors you better be willing and able to reduce their cities to radioactive glass.

When Everyone Needs Their Own Nuke

Right now, there’s little public appetite for smaller powers to get nukes. The assumption, grown out of the great power politics of 19th and 20th century Europe, was that great powers having them meant no one would need them, because the great powers would shield smaller nations from violence. But that assumption is failing catastrophically. Smaller powers have started to realize they need their own nuclear deterrent.

Kim Jong Un, casually gesturing at maybe a nuclear bomb?

This emerging calculus applies to thousands of “little” conflicts around the world. But no conflict is little when it’s your conflict. North Korea is the obvious example of the future we’re flirting with. They’re a poor hell country in an absolutely terrifying neighborhood that realized they literally needed nukes more than food. But they have their bombs. Their continued existence can only be threatened by their own incompetence, no one else can touch them.

These cases, where a state’s sovereignty is in question, are everywhere. As a random example, (and deliberately not one I think is currently likely) take Ethiopia. Prime Minister Abiy Ahmed has a couple of priorities: getting a trading port on the Red Sea, (Ethiopia is the largest landlocked country in the world by population), and basic electrification. They’ve recently destabilized the region by recognizing the break-away state of Somaliland in exchange for a trading port, pissing off Somalia something fierce.

Equally contentious, the administration is working on a massive hydroelectric project with the potential to electrify a lot of Ethiopia, and maybe export power to some neighbors. But Egypt, the military powerhouse in the neighborhood, doesn’t want to deal with the reduced flow on the Nile for a some years as the dam is filled. They have threatened to bomb the project out of existence, if they don’t get their way on the Nile — lights that might never come on. All while Somalia tries to box in Ethiopia’s trade hopes in order to hold itself together.

Would it be irrational for Prime Minister Ahmed to want a nuke or two to hold the neighbors at bay? It’s expensive and impractical, so yes, …but also no. The nuclear club gets yelled at plenty, but as the DRPK has shown, it also gets respect, and ultimately, nuclear nations get left alone, something Ethiopia might appreciate.

The Iranian IR-40 Heavy Water Reactor that is definitely not making Plutonium. At the moment.

There’s many others who currently might want to go nuclear; that’s how proliferation works. Iran has been vaguely trying for ages, which means their frenemy Saudi Arabia would not want to be left behind. Syria has tried because Syria is insane. And Turkey? They don’t like being left out of things.

If ever the US waivers in its international support, South Korea would be existentially foolish to pass up joining the nuclear club. If the Korean peninsula is fully nuclear, Japan might feel compelled to follow, even with its history.

The world quietly becomes more dangerous as the post Cold War great power promises fail, and it’s not getting harder to build a nuke.

A post-Budapest proliferation world could be terrifying, especially as it is pushed into political chaos by Russia, the Middle East, and most of all, Climate Change. It is exactly the world everyone has wanted to prevent since the Trinity test. The old cold warriors aren’t supplying Ukraine out of the kindness of their hearts, but out of the cold calculus of the deal with the Devil we all made in New Mexico.

The Boomers of international relations know what’s at stake here is non-proliferation, which they’re already watching fail in Asia. This is a dark future we’re toying with, where small states play nuclear brinkmanship over resources made unreliable by climate change. And they have to, because the modern great powers, pulling back from their allies, haven’t given them any choice. As increasingly insecure and isolated western countries hoard resources, close borders, and most importantly, abandon agreements to protect the integrity and dignity of smaller allies, nuclear armament just makes more sense.

The NPT (Nuclear non-Proliferation Treaty) is still a going concern, if no longer a famous or fashionable one. We don’t dream in mushroom clouds anymore, like the kids did in the 1970s and 1980s. The treaty has been medium successful; the number of nuclear weapons has gone down by a lot, and the number of nuclear armed states hasn’t gone up by as much as was expected back in the 1970s. But should Ukraine fall, the NPT could simply become a dead letter. Why should anyone trust their existence to an international norm the internationals don’t care about? The world is watching Ukraine; the question is what historical lesson it will take away from this war.

Ten years after the Revolution of Dignity

Protestors demanding the return of POWs inMaidan Nezalezhnosti last month

Despite the bombing and the strain of this war on the city, Maidan Nezalezhnosti is not empty these days. It is still the heart of Kyiv, and a moral center of the country itself. It is decorated with pictures of the lost places and people of Ukraine, and sometimes filled with families and protestors, demanding into the wind the return of their family members, and their homes. It is still a place of hot and angry hope. Kyiv, like the rest of the world, is uncomfortably warm right now in record-breaking August heat. It will be surpassed soon by the next record breaking month on our little blue dot, as the heat the destabilizes our physical systems along with our political and social systems.

Right now, Maidan’s sound track is too often the air raid siren, signalling people to head into the subway system because of incoming missiles they hope to, and usually do, shoot out of the sky. It is a terrifying testament to an unanswered question: What kind of a world order do we want?

With thanks to ducurodionoff, CC Attribution-NoDerivs 2.0, neiljs CC BY 2.0