[NB: check the byline, thanks. /~Rayne]

 

For the first time since he was in the service in the 1950s, my father may not be home for Christmas.

He was admitted to the hospital last week after experiencing complications related to chemotherapy. While his doctors are trying to work out a way to continue to treat him and release him, it’s likely he won’t be discharged on or before Christmas Day.

It’s difficult to feel hopeful right now; I know my dad is aware of the odds because he reminded me of the statistics for pancreatic cancer when I last spoke with him.

He’s done well up to now, more than two years since his diagnosis. The original cancer was knocked out by radiation therapy. The first round of chemo also worked well. But this cancer is stubborn and his numbers didn’t look good after a blood test earlier this year, so back into chemo he went.

But now it’s the chemo damaging him more than the cancer. I won’t go into specifics but the reason he’s in the hospital now isn’t because of the cancer but because of the therapy.

There’s no other effective alternate therapy, either.

The cost is staggering, too. I don’t know how much Medicare and his insurance are covering, but at tens of thousands of dollar per infusion, chemo is going to eat his life savings. The odds of survival for pancreatic cancer are poor but some of the odds are certainly shaped by patients’ financial ability to fight the disease.

We went through this last year when my father-in-law died after a five-year battle with a different cancer. He was left nearly bankrupt. In his case there were two immunotherapies employed over five years, and they were effective just as long as his oncologist said they would be, almost to the month. He died of congestive heart failure which may or may not have been caused by his cancer since his other siblings also died of congestive heart failure in the absence of cancer.

My father-in-law only had to fight the cancer and his genetics.

My dad, however, has to deal with betrayal on top of cancer.

When I spoke with my dad we also discussed therapies – there aren’t any, really, just the radiation and chemo he’s had to date. If there were effective immunotherapies we would have explored them but there aren’t any. Nor will an mRNA vaccine for pancreatic cancer arrive soon to help my dad’s immune system fight the cancer on its own.

There won’t be any soon under the Trump administration with Robert F. Kennedy Jr. helming Health and Human Services. All cancer research has been affected but cancers without immunotherapies or other effective alternatives to radiation and chemotherapy are those most in need of mRNA vaccine research.

RFK Jr. has assured disruption to all, and discouraged researchers so much that many have left the U.S. to continue work abroad. The cuts to federal funding will suppress investment by other parties. The damage to the U.S. as a center for cancer and vaccine research will last long beyond Trump’s term in office.

It will last beyond my dad’s likely lifetime which will not receive the benefit of research in progress but throttled under Trump and RFK Jr.

It has to be utterly gutting to my dad who’s been a lifelong Republican voter to know the party to which he has been so loyal has been savaging public health at a time when he is most vulnerable and needs it the most — a betrayal unto death. Though we’ve discussed them before I haven’t and won’t ask him about the GOP or Trump because my dad doesn’t need the additional aggravation.

But Dad did touch on RFK Jr., condemning him in his tersest fashion.

My dad doesn’t swear often. Very rarely, usually when he’s injured himself or something has broken during a repair he might muster a muttered “Damn!” or “Shit.” I am so not like my dad.

I do not ever recall him dropping an F-bomb. Again, I am so not like my dad.

My dad could be the image used in the meme of the Asian father – the stern face demanding more of progeny. He asked a lot of us, but then to not ask a lot would have been a failure on his part. He came from humble origins; he was dirt poor, the first in his family to go to college. He chose from one of two universities based on the entrance fee he could afford. Dad managed to earn a bachelor’s and master’s degree in engineering and raise a family, each of whom went to college. His experience assured him that we were wholly capable of reaching his expectations.

My siblings and I dreaded the look of disappointment and the clucking tsk-tsk upon our perceived failures. Bringing home something less than an A on a report card earned one a grilling over dinner and beyond. No epithets, just many intense questions for which we’d better have a reasonable answer including how we were going to fix the lapse going forward.

With this lifelong experience I didn’t expect to hear my dad swear about RFK Jr.’s gross mismanagement of HHS.

Instead my dad tsk-tsked and called RFK Jr. incompetent.

I wish I could convey the sensation of a mic drop at this point. In my dad’s view, to be incompetent is utter failure. Incompetency means one should be immediately replaced by someone with competency, because one doesn’t acquire competency overnight.

Again, I didn’t discuss Trump or the GOP with my dad but the incompetency doesn’t stop with RFK Jr.

It’s a mark of failure on every legislator who voted to approve RFK Jr. as Secretary of HHS in spite of his history of anti-vaccine propaganda and his lack of medical education. It’s a mark of failure on Trump for his nomination of RFK Jr., catering to the crunchy mom faction and the conditioned MAGA base, along satisfying the driver behind Russian influence operations which fed the anti-vaccine/anti-mask/anti-science faction.

Americans are going to die – some have already died – because of RFK Jr.’s incompetency. Some are becoming disabled and will become disabled because his incompetency doesn’t stop at throttling cancer and vaccine research, but undermining vaccine protocols and public health messaging.

The explosion of measles and whooping cough cases, both of which had been managed by vaccines, will lead to greater numbers of disabled Americans. Measles has already killed at least three this year.

But vaccination numbers have dropped and continue to drop because the incompetent running HHS believes vaccines are somehow less safe than the diseases they prevent.

This same incompetent worm-eaten wackjob, approved by GOP legislators after nomination by a GOP president, has now ensured hope for immunotherapy and vaccines for disease like pancreatic cancer are throttled for at least the next three years.

Unless somehow GOP members of Congress catch a clue and realize national security includes the current and future health of this country, and investing in it with federal funding is essential, unless they catch a clue that a president with obvious age-related cognitive deficits is not the leader they should follow to assure the nation’s safety.

Unfortunately I won’t bet on this awakening during my father’s now-foreshortened lifetime.

__________

You can help Congress catch a fucking clue; call your members of Congress at (202) 224-3121 and demand they impeach RFK Jr. for incompetency. 5Calls.org also has a petition you can use to demand RFK Jr.’s impeachment.

Members of Congress are back in their state and district for the holiday break. You could also call the closest local office and find out if and when they are making public appearances at which you can demand they support impeaching the incompetent RFK Jr.

After Trump spent a year destroying government, there have been several attempts in recent days to tell the story of what Trump took away with his assault on government. This is a story we need to tell, and tell far better, in the new year if we want to hold Trump accountable and not just reverse the damage he did, but use his destruction as a way to rebuild better.

Consider this WaPo story, “The year Trump broke the federal government.”

It tells the stories of hundreds of Federal workers, including those who left and those who stayed through the DOGE and Russ Vought massacres. It is great! But it also only mirrors the full story (and potentially buried in a holiday weekend).

It very poignantly captures the cruelty of Trump’s firings, such as this anecdote about a woman killing herself just after Elon Musk’s Five Things emails started.

In Virginia, the family of Centers for Medicare and Medicaid Services worker Caitlin Cross-Barnet checked her into a mental health facility. She was struggling with despair after a difficult hysterectomy, and because she felt Trump was unraveling the government. In daily calls to her husband, she asked about changes to the federal workforce. Six days after the “What did you do” email, she killed herself.

While it describes many benefits shuttered, it doesn’t describe what happened to the people affected by these losses.

What happened, for example, when those working a suicide prevention line could no longer offer their clients privacy?

Veterans who called to confess thoughts of suicide could hear people speaking in the background.

What happened when LGBTQ+ veterans stopped showing up for counseling appointments?

The psychologist’s LGBTQ+ patients stopped showing up to their appointments.

What is the impact of rising rates of mental illnesses among service members, now left neglected in the wake of another firing?

Another morning gone with no chance to turn to his studies of rising rates of mental illness among service members. Or his proposals, languishing for almost a year now, on how the government could drive those down.

What happened when the government fired a bunch of people focusing on educational access for Native Americans (even while moving health experts to Indian Health Services)?

Her job was helping administer grants to support Native American students. Then she remembered. She’d once served as president of an affinity group for Native Americans and Alaskans at the department.

You might ask what happened to the people Erica Hagen might be harmed in advance of her firing.

She thought about all the frozen programs she had helped oversee: One treating and preventing HIV. Another educating children in rural areas. A third reducing plastic in the oceans.

But a number of people have told the story of what happened with Marco Rubio cut USAID, both in sheer terms — the hundreds of thousands who’ve already died and the 14 million who may one day die, but also the children dying of hunger in Kenya or the cholera outbreak in South Sudan.

What happened to those who might benefit from sustainable energy programs that got cut?

At the Energy Department, one worker prepared memos arguing that his projects would cut costs for American homes and businesses. Someone decided to cancel many anyway. So he, like other employees, began deleting: Any mention of “carbon.” “Sustainability.” The word “green.”

What about FDA inspections that didn’t happen? Who got sick?

A Food and Drug Administration staffer couldn’t purchase dry ice or environmental swabs, nor pay the highway tolls that safety inspectors incurred driving for work.

One I’m self-interested in, as a former Great Lakes resident, what happened when they cut the carp program?

In the Midwest, union leader Colin Smalley watched his Army Corps of Engineers unit dwindle. Among the departed: An employee so knowledgeable about rock blasting that the government brought him back the first time he tried to retire. A staffer who was spearheading a novel project to stun invasive carp with electric shocks. How, Smalley asked his wife, could they ever replace someone who knew how to electrify rivers?

The answer, I think, is that this is one of the few things Gretchen Whitmer won by normalizing Trump.

The story describes how Trump’s cuts delayed efforts to prepare Colorado  for fire season — ostensibly something Trump cares about. But did it exacerbate fires or did we get lucky?

In a Colorado branch of the Forest Service, one man was designated purchaser for the entire office. Anyone who wanted to buy horse fodder or irrigation pipes had to wait until the man returned from weeks-long firefighting trips. The new system meant staff were a week late buying chainsaw fuel, delaying the thinning of flammable forest brush. “In 15 years, I have never seen us so unprepared for fire season,” the local fire management officer told staff at a meeting, according to one worker in attendance.

The nation’s parks and forests are rotting from neglect. What does that look like?

In Lander, Wyoming, three Forest Service retirees noticed fences tilting over, docks slipping into lakes, mountain roads caving inward from water pressure.

Like the USAID cuts, this is story that is already getting told elsewhere; it is a story that is generating a lot of localized anger.

This great video from Molly Jong-Fast, which includes a bunch of great regulators — like Lina Khan, Alvaro Bedoya, Doha Mekki, and Elizabeth Wilkins — who got fired addresses many of these impact questions.

I’m a big fan of all these people and Khan (who’ll have a platform working for Mayor Mamdani) can explain the import of regulation to anyone. All of these fired experts are exceptional at explaining how overturning regulation harms people, like construction workers or taxi drivers or renters or chicken farmers.

But imagine a video that started from one or another harm that mentioned repeatedly — such as the harms, including encouraging suicide, caused by bots and AI. That’s a story that would resonate with mothers, as opposed to primarily Democrats who want to strategize how to reverse Trump’s destruction.

To be sure: at 39:00, Wilkins talks about how important story telling is. She describes that we need to explain all this in terms of villains. “Tell the story of who is the bad guy in this story, who is the hero of this story.” But we also need to invite every American into the story, because they’ve lost something from Trump’s assault on government.

One (very) simple example really resonated with me, at least. In a piece explaining the value  of NCAR to Americans in advance of Trump’s assault on it, It’s just a list of eight things that are not (as Russ Vought targeted) “climate alarmism.”

In accessibly wonky terms, it translates some of the things NCAR does — like making flights safer — into things people care about.

As a child, I remember hearing news stories about commercial airplanes crashing due to wind shear. Microbursts, which are localized downburst of sinking air associated with thunderstorms, were often the culprit. The Low-Level Wind Shear Alert System developed by NCAR researchers has helped to virtually eliminate microburst-related wind shear crashes. Such advances, along with Terminal Doppler Radar, are examples of the R&D machine at work for our benefit even as you may not realize it as your plane takes off or lands safely. Additionally, many of the computer algorithms used to alert pilots and airline managers about turbulence were developed at NCAR. Likewise, NCAR’s aircraft icing products have been a staple in the aviation industry and distributed by NOAA’s Aviation Weather Center.

Regular fliers are already outraged by the continued enshittification of air travel, including Crash Sean Duffy’s reversal of consumer protection rules imposed by Pete Buttigieg.

Here’s one aspect, turbulence, that Trump is actively planning to make worse.

Again, I think all of these are really good stories. I’m just looking ahead — not to elections, or even to what Khan will do as a key aide to the Mayor of New York — but to ways we can better tell stories about what Trump took away, about what Trump stole from the American people, so we can hold him accountable.

If we are to believe Hegel – or Collingwood – no age, no civilization, is capable of conceptually identifying itself. This can only be done after its demise ….

Lescek Kolakowski, Modernity on Endless Trial p. 3.

Index to posts in this series

If we can’t find help in dealing with the rise of fascism in older books perhaps we should look to newer material, remembering Kolakowski’s warning. In a recent article in the Boston Review titled What Are We Living Through, Jedidiah Purdy-Britton and David Pozen, law professors at Duke and Columbia respectively, take up this problem. They describe three “scripts” people use to answer the title question. This is an excellent article, worth reading and contemplating. In this post, I will briefly describe each script, the changes each suggests, and then offer some thoughts.

The Scripts

1. The Authoritarian Turn. The Trump regime represents a sudden shift into a dangerous authoritarian future. This view is mostly held by centrists, which I think means most Democratic politicians.

2. More of the same. The Trump regime is the culmination of decades of slow erosion of democratic society. Trump is accellerating it. This is a more leftish view.

3. Constitutional Crisis. The Trump regime is just another constitutional crisis, based on an electoral victory and a challenge to the existing regime. It’s like the FDR administration creating the New Deal. This is the view of Trump supporters and conservative intellectuals.

Trump’s decisive Electoral College victory in 2024, after a campaign with more sharply defined stakes than in 2016, put a popular (if not quite majoritarian) imprimatur on such change. Following a playbook developed during the New Deal and refined in the civil rights era, Trump’s team is employing all the tools at its disposal to reshape the balance of power across state and society in line with campaign pledges to curb illegal immigration, shrink the federal workforce, restore religion in the public sphere, and advance a “colorblind” conception of racial equality.

The difference between the Authoritarian Crisis view and the More of the Same view is continuity. The former suggests that the US was mostly fine and getting better, but then Trump came along. The latter suggests that this regime didn’t come out of nowhere, but is an acceleration of a long process of deterioration. The Constitutional Crisis theory is based on the idea that for some decades the US has lived under a ‘liberal hegemony”, and the second Trump regime is a counter-revolution against that hegemony.

The authors generate a list of horribles which justify each script. I assume we all know the horribles for the first two. The list for the third is culture war issues, and Republican revanchism.

The MAGA movement wishes to dismantle not just a policy here or a doctrine there but a whole edifice of laws, norms, and values that it sees liberals as having imposed through their dogma of “living constitutionalism” and their sway over regulatory bodies, universities, foundations, and legacy media organizations. Although a “radical” reform agenda of such scale may not sound very conservative, nothing less will suffice, on this view, to overthrow the prevailing forces of institutional and ideological control.

Actions suggested by scripts

The Authoritarian Crisis view suggests that we need to return to an earlier era of cooperation and bipartisanship. The main goal is decentralization of power after a turn to the concentration of power in the Presidency.

The More of the Same partisans will want a broad array of changes in the structure of government, and aggressive efforts to attack oligarchical control, reactionary courts, and right-wing extremists stuffed into government at all levels.

The Constitutional Regime Change script suggests that liberals and others who disagree should continue with normal political opposition. If enough people don’t like Trumpian government they can just vote the scoundrels out.

Each of these points is worked out in reasonable detail by the authors, making the article fairly balanced.

Discussion

General.

I agree with the authors that these three scripts accurately set out the basic features of current political discourse. I question whether anything a Trump advocate says is actually connected to anything the Trump regime says or does, but I’ve seen echoes of this argument elsewhere.

It seems to me the article generates two important questions. First, the authors don’t offer much explanation of how these changes started and increased to the current state. Second, it doesn’t talk about the role of the rest of government, especially the Supreme Court, which is surprising because the authors are law profs. Both are important for figuring out what is to be done. I’ll take these issues up in another post.

2, My view of the rise of authoritarianism.

I think people everywhere have deeply embedded ugly feelings that at our human best we try to eradicate, or at least repress into meaninglessness. But not all of us, and not always successfully. I think there was a period in recent US history where a large majority of us were shamed by those ugly streaks, and worked to eradicate them. But they are still there for a lot of people, smoldering, available to any demagogue who might benefit from stoking them.

As we see in Hannah Arendt’s The Origins Of Totalitarianism, anti-Semitism has been an undercurrent in Europe since at least the Middle Ages. By the mid-19th Century most middle and upper-class German and French Jews felt they were assimilating, becoming just regular citizens. But there remained a number of non-Jews in whom it never died out. There were occasional outbursts like the Dreyfus Affair in France, which flared up and then died uneasily, but mostly things seemed to be improving.

After social upheaval and economic disasters in Post-WWI Germany, anti-Semitism was a natural tool for the Nazis, creating an enemy within, and justifying the Holocaust. It was effective in Vichy France as well. In one poignant example, the granddaughter of Alfred Dreyfus, Madeleine Levy, was captured by the Vichy police and sent to Auschwitz, where she died of typhus at the age of 25. We still see it today in England, where the Labour Party was roiled by allegations of anti-Semitism. It’s present in the US, too.

In exactly the same way, racism has been part of US society almost since the first settlements here, as shown by Ibram X. Kendi in Stamped From the Beginning.  Anti-immigrant sentiment was a natural tool for 19th and early 20th C capitalists to use to divide the working class. Misogyny and homophobia have even older roots in cultures as far back as we have records. In the US, we add a layer of anti-intellectualism, our own contribution to manipulation.

These ancient prejudices are natural wedges which have been used by elites through the centuries to divide and control people. Today those tools are explicitly welded by the right-wing and its billionaire backers. There are at least 1150 billionaires in the US today, and they control our economy. That control is obvious in mass media, including social media. Billionaires and their hirelings have tools to control discourse and direct the attention of huge numbers of voters who may not even realize how they are being manipulated.

Maybe most of the billionaires snd rank and file Trump supporters don’t think of themselves as prejudiced in any way. But they supported the overtly racist, xenophobic, misogynist, homophobic Trump. They probably like science and technology, but their Senators approved RFK, Jr., and stood by while he and Elon Musk wrecked governmental research.

There are other factors that reinforce this top-down justification and support for hate and fear, including inequality of income and wealth, inflation, and lack of critical thinking. But for many of us media-inspired fear and hatred make it impossible to see the actual causes of actual problems.

And that’s how we got here. Too many of us either wanted or ignored the hatred and justified their votes with the lies about the economy paid for by billionaires.

President Trump arrived late to a healthcare announcement yesterday and didn’t take any questions.

Starting around the same time, DOJ launched some of the most complexly executed Friday Night News dumps going.

Epstein Limited Hangout

The big attraction was the release of the first batch of the Epstein files. The limited release violates the law, which required all files to be released yesterday.

Instead, there were a whole bunch of Bill Clinton photos, the document reflecting Maria Farmer’s complaint from 1996, that went ignored for years, and redacted grand jury transcripts that clearly violate the law. [Update: They have now released the SDNY ones.] The government did not release the proposed indictment and prosecution memo for the indictment that should have been filed in 2007; that may be sealed as deliberative.

Todd Blanche’s wildly dishonest letter (particularly with regards to his claimed concern for victims, after being admonished repeatedly by judges for failing to take that responsibility seriously and a last minute bid that promised but failed to put Pam Bondi on the phone) explaining the release emphasizes how Bondi took over a hundred national security attorneys off their job hunting hackers and spies to conduct a second review; it does not mention the even bigger review the FBI accomplished in March.

The review team consisted of more than 200 Department attorneys working to determine whether materials were responsive under the Act and. if so, whether redactions or withholding was required, The review had multiple levels. First, 187 attorneys from the Department’sNational Security Division (NSD) conducted a review of all items produced to JMD for responsiveness and any redactions under the Act. Second, a quality-control team of 25 attorneys conducted a second-level review to ensure that victim personally identifying information wasproperly redacted and that materials that should not be redacted were not marked for redaction.The second-level review team consisted of attorneys from the Department’s Office of Privacy and Civil Liberties (OPCL) and Office of Information Policy (OIP)—these attorneys are experts in privacy rights and reviewing large volumes of discovery. After the second-level review team completed its quality review, responsive materials were uploaded onto the website for public production as required under the Act. See Sec. 2(a). Finally, Assistant United States Attorneys from the Southern District of New York reviewed the responsive materials to confirm appropriate redactions so that the United States Attorney for the Southern District of New York could certify that victim identifying information was appropriately protected.

That John Eisenberg’s department was in charge of a second pass on these documents is of some interest; there’s no specific competence Nat Sec attorneys would have, but Eisenberg has helped Trump cover stuff up in the past, most notably the transcript of his perfect phone call with Volodymyr Zelenskyy.

Thus far the limited hangout has shifted the focus onto Clinton and away from Trump, but as Kyle Cheney lays out, it risks creating a WikiLeaks effect, in which a focus remains on Epstein for weeks or even months.

Deputy Attorney General Todd Blanche confirmed Friday that the documents would be released on a rolling basis through the holidays — and possibly beyond. And, in court papers filed shortly after Friday’s partial release, the Justice Department emphasized that more files are still undergoing a review and redaction process to protect victims and new Trump-ordered investigations before they can be released.

The daily drip is a remarkable result for President Donald Trump, who has urged his allies to move past the Epstein files — prompting jeers from Democrats who say he’s trying to conceal details about his own longtime relationship with Epstein. Trump has maintained for years that he and Epstein had a falling out years ago, and no evidence has suggested that Trump took part in Epstein’s trafficking operation. Trump advocated for the release of the files only after Republicans in Congress rebuffed his initial pleas to keep them concealed.

[snip]

Trump is no stranger to the political power of intermittent disclosures of derogatory information. In 2016, Trump led the charge to capitalize on the hack-and-leak operation that led to daily publications of the campaign emails of Hillary Clinton and her top allies. The steady drumbeat of embarrassing releases — amplified by Trump and a ravenous press corps — helped sink Clinton’s campaign in its final weeks.

And that’s before the political and legal response to this limited hangout. Some victims are already expressing disappointment — most notably, by the redaction of grand jury material and names they know they shared, as well as the draft indictment from Florida.

Tom Massie and Ro Khanna, while originally giving DOJ the benefit of the doubt, are now contemplating measures they can take — potentially including contempt or impeachment — to enforce this law.

After Fox News was the first to report that the names of some politically exposed persons would be redacted, DOJ’s favorite transcriptionist Brooke Singman told a different story.

And Administration officials are getting burned by Elon’s fascism machine for their dishonesty.

Once again, Trump’s top flunkies may be overestimating their ability to contain their scandal.

Todd Blanche behind the selective prosecution

Meanwhile, efforts by those same flunkies to punish Kilmar Abrego continue to impose costs.

There have been parallel proceedings with Abrego in the last month. Just over a week ago in his immigration docket, Judge Paula Xinis ordered Kilmar Abrego to be released from ICE custody for the first time since March, and then issued another order enjoining DHS from taking him back into custody at a check-in the next day. Effectively, Xinis found the government had been playing games for months, making claims they had plans to ship Abrego to one or another African country instead of Costa Rica, which had agreed to take him. Those games were, in effect, admission they had no order of removal for him, and so could no longer detain him.

[B]ecause Respondents have no statutory authority to remove Abrego Garcia to a third country absent a removal order, his removal cannot be considered reasonably foreseeable, imminent, or consistent with due process. Although Respondents may eventually get it right, they have not as of today. Thus, Abrego Garcia’s detention for the stated purpose of third country removal cannot continue.

But even as that great drama was happening, something potentially more dramatic was transpiring in Abrego’s criminal docket.

Back on December 4, Judge Waverly Crenshaw, who had been receiving, ex parte, potential evidence he ordered the government turn over in response to Abrego’s vindictive prosecution claim, canceled a hearing and kicked off a fight over disclosures with DOJ. Four days later he had a hearing with the government as part of their bid for partial reconsideration, but then provided a limited set of exhibits to Kilmar’s attorneys.

Then yesterday, in addition to a request that Judge Crenshaw gag Greg Bovino — who keeps lying about Abrego — Abrego’s team submitted filings in support of the bid to dismiss the indictment. One discloses that Todd Blanche’s office was pushed by people within Blanche’s office, including Aakash Singh, who is centrally involved in Blanche’s other abuse of DOJ resources, including by targeting George Soros.

Months ago now, this Court recognized that Deputy Attorney General Todd Blanche’s “remarkable” admission that this case was brought because “a judge in Maryland…questioned” the government’s decision to deport Mr. Abrego and “accus[ed] us of doing something wrong”1 may “come close to establishing actual vindictiveness.” (Dkt. 138 at 7-8). The only thing the Court found missing from the record was evidence “tying [Mr. Blanche’s statements] to actual decisionmakers.” (Id. at 8). Not anymore. Previously, the Court rightly wondered who placed this case on Mr. McGuire’s desk and what their motivations were. (Dkt. 185 at 2). We now know: it was Mr. Blanche and his office, the Office of the Deputy Attorney General, or “ODAG.” On April 30, 2025, just three days after Mr. McGuire personally took on this case, one of Mr. Blanche’s chief aides, Associate Deputy Attorney General Aakash Singh, told Mr. McGuire that this case was a [redacted]2 (Abrego-Garcia000007). That same day, Mr. Singh asked Mr. McGuire: [redacted] (Abrego-Garcia000008). Mr. McGuire responded with a timing update, saying he wanted to about a strategic question, and assuring Mr. Singh [redacted] and [redacted] (Abrego-Garcia000008). These communications and others show, as the Court put it, that [redacted] and [redacted] (Dkt. 241 at 5, 7). The “remarkable” statements “com[ing] close” to establishing vindictiveness (Dkt. 138 at 7-8) came from the same place— ODAG—as the instructions to Mr. McGuire to charge this case. The only “independent” decision (Dkt. 199 at 1) Mr. McGuire made was whether to acquiesce in ODAG’s directive to charge this case, or risk forfeiting his job as Acting U.S. Attorney—and perhaps his employment with the Department of Justice—for refusing to do the political bidding of an Executive Branch that is avowedly using prosecutorial power for “score settling.”3

2 The Court’s December 3 opinion (Dkt. 241) remains sealed, and the discovery produced to the defense in connection with Mr. Abrego’s motion to dismiss for vindictive and selective prosecution was provided pursuant to a protective order requiring that “[a]ny filing of discovery materials must be done under seal pending further orders of this Court” (Dkt. 77 at 2). Although the defense does not believe that any of these materials should be sealed for the reasons stated in Mr. Abrego’s memorandum of law regarding sealing (Dkt. 264), the defense is publicly filing a redacted version of this brief out of an abundance of caution pending further orders of the Court.

3 See Chris Whipple, Susie Wiles Talks Epstein Files, Pete Hegseth’s War Tactics, Retribution, and More (Part 2 of 2), Vanity Fair (Dec. 16, 2025), https://www.vanityfair.com/news/story/trump-susie-wiles-interview-exclusive-part-2.

While the specific content of this discovery remains redacted, the gist of it is clear: Blanche’s office ordered Tennessee prosecutors to file charges against Abrego in retaliation for his assertion of his due process rights.

We know similar documents exist in other cases — most notably, that of LaMonica McIver, Jim Comey, and Letitia James — but no one else has succeeded in getting their hands on the proof.

The Jim Comey stall

Speaking of which, the news you heard about yesterday is that DOJ filed its notice of appeal in both the Jim Comey and Letitia James’ dismissals.

The move comes after DOJ tried to indict James again in Norfolk on December 4 and then tried again in Alexandria on December 11, after which the grand jury made a point of making the failure (and the new terms of the indictment, which Molly Roberts lays out here) clear; Politico first disclosed the Alexandria filings here.

But I think the more interesting development — filed close to the time of the notice of appeals (the notices landed in my email box around 5:44-46PM ET on the last Friday before Christmas and the emergency motion landed in my email box around 5:17PM) — was yet another emergency motion in the Dan Richman case, something DOJ (under Lindsey the Insurance Lawyer’s name) keeps doing. After Judge Colleen Kollar-Kotelly issued her ruling that sort of said DOJ had to return Dan Richman’s stuff and move the remaining copy to EDVA, DOJ filed an emergency motion asking for clarification and an extension and (in a footnote) reconsideration. After Kollar-Kotelly granted the extension and some clarification (while grumbling about the tardiness and largely blowing off the motion for reconsideration), DOJ asked for another extension. Then DOJ filed a motion just informing Kollar-Kotelly they were going to do something else, the judge issued a long docket order noting (in part) that DOJ had violated their assurances they wouldn’t make any copies of this material, then ordering Richman to explain whether he was cool with this material ending up someplace still in DOJ custody rather than EDVA.

In its December 12, 2025, Order, the Court ordered the Government to “return to Petitioner Richman all copies of the covered materials, except for the single copy that the Court [] allowed to be deposited, under seal, with the U.S. District Court for the Eastern District of Virginia.” See Dkt. No. 20. The Court ordered the Government to certify compliance with its Order by 4:00 p.m. ET on December 15, 2025. Id. The Court further ordered that, until the Government certified compliance with its December 12 Order, the Government was “not to… share, disseminate, or disclose the covered materials to any person, without first seeking and obtaining leave of this Court.” See Order, Dkt. No. 20 at 2 (incorporating the terms of Order, Dkt. No. 10).

On December 15 (the Government’s original deadline to certify compliance with the Court’s December 12 Order), the Government requested a seven-day extension of its deadline to certify compliance with the Court’s December 12 Order. Dkt. No. 22. Petitioner Richman consented to this extension. Id. And the Government represented that it would “continue to comply with its obligation… not to access or share the covered materials without leave of the Court.” Id. at 11 (citing Order, Dkt. No. 10 and Order, Dkt. No. 20). So the Court granted the Government’s request for extension, thereby continuing the Government’s deadline to certify compliance with the Court’s December 12 Order to 4:00 p.m. ET on December 22. Order, Dkt. No. 26.

As of this date, the Government has not certified compliance with the Court’s December 12 Order. Accordingly, the Government is still under a Court order that prohibits it from accessing Petitioner Richman’s covered materials or sharing, disseminating, or disclosing Petitioner Richman’s covered materials to any person without first seeking and obtaining leave of this Court. See Dkt. No. 10; Dkt. No. 20; Dkt. No. 22; Dkt. No. 26. As the Government admits, the Government provided this copy of Petitioner Richman’s materials to the CISO “after the Government filed its emergency motion,” Gov’t’s Mot., Dkt. No. 31 at 1, fn. 1, in which the Government represented that it would “continue to comply with its obligation… not to access or share the covered materials without leave of the Court.” Dkt. No. 22 at 11.

In last night’s motion for emergency clarification (which had all the clarity of something written after a Christmas happy hour), DOJ explained that they couldn’t deposit the materials (which according to Kollar-Kotelly’s orders, would no longer have the single up-classified memo that Richman first shared his entire computer so FBI could get eight years ago) because there was no Classified Information Security Officer in the courthouse serving DOD, CIA, and ODNI. So they raised new complaints — basically, yet another motion for reconsideration. After having claimed, last week, that they had just a single copy of Richman’s data, they noted that actually they had it in a bunch of places, then pretended to be confused about storage devices.

d. The Court further clarified its order on December 16, 2025, stating that the Court “has not ordered the Government to delete or destroy any evidence.” ECF No. 27 at 2. But the Court has also instructed the Government that it may not “retain[] any additional copies of the covered materials.” ECF No. 20 at 2. The government has copies of the information in its systems and on electronic media. It is not clear how the government can avoid “retaining” the materials without deleting them.

e. The Court has not yet otherwise explained whether the Government must provide to Richman the original evidence “obtained in the Arctic Haze investigation (i.e., hard and/or flash drives and discs currently in the custody of the FBI,” ECF No. 22 at 9, some subset thereof (e.g., not including classified information), whether the Government must provide Richman the covered materials in some other fashion, and what else the Government must do (or not do) to comply with the December 12, 2025 order.

After they confessed, last week, that neither the discontinued e-Discovery software nor the now-retired and possibly impaired FBI agent could reconstruct what happened with Richman’s data five years ago, they insisted they were really keeping track of the data, Pinky Promise.

f. Notwithstanding the passage of time, changes in personnel, and the limits of institutional memory, the Government emphasizes that the materials at issue have at all times remained subject to the Department of Justice’s standard evidence-preservation, record-retention, and chain of custody protocols. The Government is not aware of any destruction, alteration or loss of original evidence seized pursuant to valid court-authorized warrants. Any uncertainty reflected in the Government’s present responses regarding the existence or accessibility of certain filtered or derivative working files does not undermine the integrity, completeness, or continued preservation of the original materials lawfully obtained and retained. The Government’s responses are offered to assist the Court in tailoring any appropriate relief under Rule 41(g) in a manner consistent with its equitable purpose, while preserving the Government’s lawful interests and constitutional responsibilities with respect to evidence obtained pursuant to valid warrants and subject to independent preservation obligations.

Every single thing about the treatment of Richman’s data defies this claim, which is why he had a Fourth Amendment injury to be redressed in the first place.

Nevertheless, in this their second motion fashioned as a motion for clarification, they they propose, can’t we just keep all the data and Pinky Promise not to do anything with it?

g. Rather than require the government to “return” or otherwise divest its systems of the information, the government respectfully suggests that the more appropriate remedy would simply be to direct the government to continue not to access the information in its possession without obtaining a new search warrant. It is not clear what Fourth Amendment interest would be served by ordering the “return” of copies of information (other than classified information) that is already in the movant’s possession, and that the government continues to possess, at least in the custody of a court (or the Department of Justice’s Litigation Security group, as may be appropriate given the presence of classified information). And the Court’s order properly recognizes that it is appropriate for the government to retain the ability to access the materials for future investigative purposes if a search warrant is obtained. ECF No. 20 at 1. Forcing transfer of evidentiary custody from the Executive Branch to the Judiciary would depart from the traditional operation of Rule 41(g), which is remedial rather than supervisory, and would raise substantial separation-of-powers concerns. The government respectfully suggests that the best way to do that is to allow the executive branch of government to maintain the information in its possession, rather than forcing transfer of evidence to (and participation in the chain of custody by) a court. See, e.g., United States v. Bein, 214 F.3d 408, 415 (3d Cir. 2000) (applying then-Rule 41(e) and noting that it provided for “one specific remedy—the return of property”); see also Peloro v. United States, 488 F.3d 163, 177 (7th Cir. 2007) (same regarding now-Rule 41(g)).

Having violated their promise not to make copies without permission once already, they Pinky Promised, again, they wouldn’t do so.

b. The Government shall continue not to access or share the covered materials without leave of the Court. See ECF No. 10 at 4; ECF No. 20 at 2.

And then they offered a horseshit excuse to ask for a two week extension beyond the time Kollar-Kotelly responds to their latest demands (partly arising from their own stalling of this matter into Christmas season) — that is, not a two week extension from yesterday, which would bring them to January 2, but instead two weeks from some date after December 22, which was at the time Richman’s next deadline.

a. Because it is yet not clear to the Government precisely what property must be provided to Richman by December 22, 2025 at 4:00 PM (and what other actions the Government must or must not take to certify compliance with the December 12, 2025 order as modified), the Government respectfully requests that it be provided an additional fourteen days (because of potential technological limitations in copying voluminous digital data and potential personnel constraints resulting from the upcoming Christmas holiday) from the date of the Court’s final order clarifying the December 6, 2025 order to certify compliance. 1

1 An extension of the compliance deadline is merited by the extraordinary time pressure to which the Government has been subjected and the necessity of determining, with clarity, what the Government must do to comply with the December 12, 2025 order as clarified and modified. See Fed. R. Civ. P. 60(b)(6); see also ECF No. 22 at 6–7 (summarizing applicable legal principles). [my emphasis]

They asked, effectively, to stall compliance for a month.

As a reminder, the grand jury teed up before Aileen Cannon convenes on January 12.

Kollar-Kotelly’s response (which landed in my email box at 7:06, so definitely after prime Christmas happy hour time) was … weird. In addition to granting the government part of the extension they requested (until December 29), she all of a sudden asked Richman what happened after he voluntarily let the FBI image his computer so they could ensure there was no classified information in it.

At present, in this second request, the Court would benefit from additional detail from Petitioner Richman regarding the Government’s imaging of Petitioner Richman’s personal computer hard drive in 2017. In 2017, Petitioner Richman consented to have the Government seize his personal computer hard drive, make a copy (an “image”) of his personal computer hard drive, and search his personal computer hard drive for the limited purpose of identifying and deleting a small subset of specified material. The Court is requesting information as to whether the hard drive that Petitioner Richman consented to have imaged by the Government was ever returned to Petitioner Richman, and, if so, whether any of the specified material had been removed from the hard drive that was returned.

Now maybe she’s asking this question simply to refute DOJ’s claim that any material independently held has to be held by a CISO.

The answer to this question is publicly available in the 80-page IG Report on this topic.

On June 13, 2017, FBI agents went to Richman’s home in New York to remove his desktop computer. On June 22, 2017, FBI agents returned the desktop computer to Richman at his home in New York after taking steps to permanently remove the Memos from it. While at Richman’s residence on June 22, 2017, the FBI agents also assisted Richman in deleting the text message with the photographs of Memo 4 from his cell phone.

It’s not clear why they ever kept the image in the first place (remember, they didn’t obtain a warrant to access it until well over two years later).

But I worry that Kollar-Kotelly is getting distracted from the clear recklessness — including DOJ’s most recent defiance of her order and their own Pinky Promises — for which Richman is due a remedy by the distinction between his physical property (the hard drive he got back eight years ago) and his digital property (the image of that hard drive, his Columbia emails, his iCloud, his iPhone, and iPad). The most serious abuse of his Fourth Amendment rights involved his phone, which DOJ only ever had in digital form, regardless of what kind of storage device they stored that content on (which we know to be a Blu-ray disc).

And meanwhile, everything about the government’s actions suggest they’re going to string Kollar-Kotelly along until they can get a warrant from the judge, Cannon, who once said Trump had to be given boxes and boxes of highly classified documents back because they also contained a single letter written by Trump’s personal physician and another letter published in Mueller materials.

They are just dicking around, at this point.

There’s a lot of shit going down in documents signed (as this emergency motion is) with Todd Blanche’s name. He still seems to believe he can juggle his way through politicizing the Department of Justice with some carefully executed Friday Night document dumps.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

Throughout this year, I have argued there are four ways to fight fascism — and doing so through the guise of the Democratic Party (especially DC Democrats) is not yet the best way to do so.

I argued these were the four ways to peacefully fight Donald Trump’s authoritarianism:

1. The Erica Chenoweth rule, which says that if you can get 3.5% of a population in the streets, it often leads to regime change.
2. Beginning to peel off four people in the Senate or eight or nine people in the House.
3. Rescuing Republicans from a predictable catastrophe like Democrats did in 2008 and 2020.
4. Waiting until 2026, winning at least one house of Congress, and beginning to rein in Trump that way.

Since for many of you, today will be the last normal day of the year, and unless Trump sets off a predictable catastrophe, today will also be the last Nicole Sandler show we do, I wanted to check in on how we’re doing on these four issues.

The 3.5% rule

Start with people in the streets.

If 6.5 million people attended October’s No Kings rallies (some estimates go as high as 7 million), it would amount to about 1.8% of the US population. That would make them the biggest protests in American history, but still just halfway to that 3.5% mark, and not directly in response to a particular outrage. The organizing and openness of those protests was a huge accomplishment and, at the very least, taught a lot of people who had never protested before how to do so.

But it wasn’t enough to oust Trump.

A more interesting measure of people in the streets, however, is Chicago (and other anti-ICE/CBP protests). I have no idea what population of Chicago took part in mobilizing to oppose Stephen Miller’s goons. But there are aspects of that mobilization — perhaps most importantly the way media coverage arose from citizen witness to local media to independent media to mainstream outlets — that provided real lessons in how to thrive in a disastrous media environment.

One point I keep making about this kind of opposition: it does not have to be, and arguably is far more successful if it is not, coincident with the Democratic party. Some of the most powerful moments in Chicago’s opposition came when right wingers in conservative suburbs joined in — holy hell those people were assholes!!

Whatever else Stephen Miller’s terrible dragnets have done, they have renewed civil society in most places the invasions happened.

Peeling off defectors

Both Axios and Politico took a break from Dems in Disarray or ragebait stories this week to instead focus on Hakeem Jeffries, both focusing on Jeffries’ success at getting four “moderate” Republicans to vote for his discharge position extending ObamaCare subsidies for three years.

Time and again this year, Democrats under Minority Leader Hakeem Jeffries have maneuvered to successfully undercut the GOP agenda and put its leaders on the back foot. From a daily drumbeat on health care to the long-running saga over the late sex offender Jeffrey Epstein to a new focus on the rising cost of living, they believe they’re succeeding by making the party in power talk about Democratic priorities, not its own.

Their success was underscored this week when four House Republicans joined a Jeffries-led effort to force a vote on expiring Obamacare insurance subsidies — a major embarrassment for the GOP speaker.

“Our message to Mike Johnson is clear — you can run, but you cannot hide,” Jeffries said as he took a victory lap on the House steps Thursday.

And as Politico notes, it started (actually, two months earlier than they credit) with the Jeffrey Epstein effort.

Indeed, since Tom Massie and Ro Khanna, with Jeffries’ cooperation, chased Mike Johnson away a week earlier in July for fear of Epstein votes, Johnson has largely vacated his majority.

There have been limited instances where Republicans have defected on other issues. Just before the SCOTUS hearing on Trump’s illegal tariffs, for example, a handful of Republicans defected to pass resolutions against Trump tariffs.

Where things may get more interesting in the new year — on top of what is sure to be a frantic effort to fix the healthcare crisis Republicans are causing — is on Russia. The NDAA Trump signed yesterday included a number of restrictions on European and Ukrainian funding and troop alignment, measures that directly conflict with Trump’s National Security Strategy.

In a break with Trump, whose fellow Republicans hold majorities in both the House and Senate, this year’s NDAA includes several provisions to boost security in Europe, despite Trump early this month releasing a national security strategy seen as friendly to Russia and a reassessment of the US relationship with Europe.

The fiscal 2026 NDAA provides $800m for Ukraine – $400m in each of the next two years – as part of the Ukraine Security Assistance Initiative, which pays US companies for weapons for Ukraine’s military.

It also authorizes the Baltic Security Initiative and provides $175m to support Latvia, Lithuania and Estonia’s defense. And it limits the Department of Defense’s ability to drop the number of US forces in Europe to fewer than 76,000 and bars the US European commander from giving up the title of Nato supreme commander.

To be sure, thus far, Congress has done nothing to police Trump when he spends money in ways they tell him not to. But these restrictions (along with a few things to make Whiskey Pete Hegseth behave) might set up a conflict early in the year.

Remember: recruiting defectors actually takes efforts to reach out to them, often the opposite of what people think they want.

And while all that is not enough defectors to stop Trump, Marjorie Taylor Greene may set off a stampede for the exit. And that could make it easier for Jeffries, at least, to continue to pants Mike Johnson.

Predictable catastrophe

Democrats have done a good job of seeding the ground to get credit for rescuing the country from Trump-caused catastrophes in healthcare and the economy — and both will exacerbate the other in days ahead.

I’m less sanguine that Democrats have prepared to rescue the country (and claim credit) for other likely Trump catastrophes, like a collapsing AI bubble or epidemic. Laying the ground for both is really critical, in the former case bc AI bros plan to spend big in 2026 in the same way crypto bros did in 2024, and in the former case, because bigots are trying to blame rising measles (and, now, whooping cough) on migrants rather than assholes like RFK Jr.

2026

Democrats are doing surprisingly well to position themselves for 2026, both because they’re overperforming by numbers that suggest they will do well (including in elections, like TN-07, with midyear-levels of turnout), and because they’re matching Republican redistricting efforts (and Stephen Miller’s goon squads mean the redistricting in Texas may not turn out like Trump wants).

But it will be harder to achieve a true Blue Wave than in 2018.

Even as this year’s election results have left many in the party encouraged they can mount a massive blue wave, next year’s battleground is a far cry from 2018 — with fewer Republican-held seats for Democrats to easily target.

Democrats don’t need to win as many seats this time around, netting just three seats rather than two dozen to claim a majority. But the hill to reach a comfortable majority like the 235 seats they held after the last blue wave has grown much steeper, driven by multiple rounds of gerrymandering — including ongoing redistricting in several states that threatens to erode the battlefield even further.

The result is that Democrats could post a bigger national swing than in 2018 and still end up with a slimmer majority than they had after that year.

Where Democrats are doing better is in promising consequences if and when they do get a majority.

I’m more interested in Democrats promising those capitulating to Trump — whether it be law firms or Paramount — that there’ll be consequences in 2027 than I am in discussions about impeachment (except for people like RFK Jr, such discussions will work against other Democratic efforts, IMO).

Such efforts, in my opinion, are one way to do more to lay out Trump’s accountability for predictable disasters.

All in all, opponents of fascism have more momentum than they had when caught flat-footed in January. But there’s still a lot of work to do.

Not long after something happened in November to prevent four Dan Richman dockets from being unsealed in DC District, Judge Anthony Trenga ordered a docket about a National Security Letter from the same period as the Dan Richman investigation (which he referred in 2019 to then Magistrate Judge Michael Nachmanoff) to be unsealed.

Both the four Dan Richman dockets and the NSL docket remain substantially sealed.

As I have laid out before, when Magistrate Judge William Fitzpatrick first held a hearing about DOJ’s bid to breach Jim Comey’s privilege on November 5, he started the hearing by focusing on all the sealed documents. When he asked Loaner AUSA Tyler Lemons about the status of the underlying warrants, Lemons equivocated.

THE COURT: Mr. Lemons, what’s the status of that?

MR. LEMONS: Thank you, Your Honor. Your Honor, we have made a request to the issuing district as to those search warrants, for them to be unsealed. My understanding, last speaking with an AUSA in that district, is that motion has not been filed at this time. They are preparing to provide notice to other potentially interested parties, per their practice and the rules they have to abide by in that district. So we requested it, and our understanding is at this time that the warrants all remain completely under seal. That is the only reason why the government designated these search warrants as protected material and filed them under seal and understands why the defense filed them under seal. If it was in my power and ability here today, those search warrants would be totally unsealed. [my emphasis]

After the hearing Fitzpatrick ordered that the parties take steps to unseal both the underlying warrant dockets and the sealed filings about them.

ORDERED that the Government shall, on or before November 10, 2025, move in the issuing district to unseal the four 2019 and 2020 search warrants referenced in the Government’s Reply to Defendant’s Response to the Government’s Motion for Implementation of Filter Protocol (ECF 132), together with all attendant documents, or, in the alternative, file a motion in the issuing district setting forth good cause as to why the subject search warrants and all attendant documents should remain under seal, in whole or in part; and it is further

[snip]

ORDERED that, if necessary, the Court shall hold a hearing on the pending motions to seal (ECFs 56, 72, 109, and 133) on November 21, 2025, at 10:00 a.m. in Courtroom 500, and the materials subject to those motions shall remain UNDER SEAL until further order of the Court; and it is further

ORDERED that, to the extent the Government seeks to seal Exhibit A to Defendant’s Response to the Government’s Motion for Expedited Ruling (ECF No. 55-1), the Government shall file a supporting brief in accordance with Local Criminal Rule 49 on or before November 12, 2025; Defendant may file a response on or before November 19, 2025; and, if necessary, the Court shall hold a hearing on the Government’s sealing request on November 21, 2025, at 10:00 a.m. in Courtroom 500;

Over a month ago, by November 10, the Loaner AUSAs in EDVA should have filed to unseal the four warrant dockets in DC or they should have filed a motion in DC “setting forth good cause as to why the subject search warrants and all attendant documents should remain under seal.”

If the Loaner AUSAs followed that order, it would seem to suggest someone insisted on keeping the dockets in DC sealed.

Fitzpatrick listed those dockets in a footnote of his November 17 opinion (that is, a week after DOJ would have had to file to keep everything sealed) granting Comey access to the grand jury transcripts in his case.

2 Search warrant 19-sw-182 was issued on August 27, 2019, and authorized the search of Mr. Richman’s hard drive from February 1, 2017 to April 30, 2017. ECF 89-1.

Search warrant 19-sc-2097 was issued on October 22, 2019, and authorized the search of Mr. Richman’s Columbia University and Law School email accounts from March 1, 2016 to May 30, 2017. ECF 89-2.

Search warrant 20-sw-200 was issued on January 31, 2020, and authorized the search of Mr. Richman’s iCloud account from March 1, 2016 to May 30, 2017. ECF 89-3. Attachment B to the warrant specifically limits the information to be seized to “non-privileged communications.” Id.

Search warrant 20-sw-143 was issued on June 4, 2020, and authorized the search of the backup files for Mr. Richman’s iPad and iPhone from March 1, 2016 to May 30, 2017. ECF 89-4. Attachment B to the warrant specifically limits the information to be seized to “non-privileged communications.” Id.

I just checked. They’re still sealed.

Some weeks ago, I did what any resourceful person would do to try to solve a docket mystery: I asked Seamus Hughes (of CourtWatch fame) if he could find anything.

He didn’t find any docket at DC asking to keep the files sealed.

What he did find is at least as interesting.

He found a docket, described as National Security Letter 19-498157 and listing Bill Barr as the defendant, which was originally referred to Michael Nachmanoff when he was a Magistrate Judge, with a recent update. On December 10, Judge Anthony Trenga, citing a response from DOJ on November 14 (which is sealed), ordered the docket about a 2019-2020 National Security Letter to be unsealed.

Aside from that order though, it remains substantially sealed.

This docket may be totally unrelated to the Comey case.

But the table above shows how neatly the two overlap. The NSL docket was opened a month after a Dan Richman interview in November 2019, and it was closed before DOJ obtained warrants to seize the iPhone which they’ve since been snooping into.

Maybe Santa can help us unwrap this in time for Christmas.

I was going to write about how Trump’s promise, last night, to send a bunch of service members a $1,776 checks, was actually a confession that there will be no tariff rebates for civilians.

Two paragraphs after Trump introduced his false claims about tariffs — “my favorite word” — he said that because of tariffs, along with the Big Ugly, Trump was sending some number (he bolloxed the number repeatedly) service members would get a check.

This historic trend will continue. Already, I’ve secured a record-breaking $18 trillion of investment into the United States, which means jobs, wage increases, growth, factory openings and far greater national security. Much of this success has been accomplished by tariffs, my favorite word, tariffs, which for many decades have been used successfully by other countries against us, but not anymore. Companies know that if they build in America, there are no tariffs, and that’s why they’re coming home to the U.S.A. in record numbers. They’re building factories and plants at levels we haven’t seen. A.I., automobiles, we’re doing what nobody thought was even possible, not even remotely possible. There has never, frankly, been anything like it.

[snip]

Because of tariffs, along with the just passed One Big, Beautiful Bill, tonight I am also proud to announce that more than 1,000, 450,000, think of this, 1,450,000 military service members will receive a special, we call warrior dividend before Christmas, a warrior dividend. In honor of our nation’s founding in 1776, we are sending every soldier $1,776. Think of that. And the checks are already on the way. Nobody understood that one until about 30 minutes ago. We made a lot more money than anybody thought because of tariffs, and the bill helped us along. Nobody deserves it more than our military. And I say congratulations to everybody. And by the way, we now have record enlistment in our military, and last year we had among the worst recruitment numbers in our military’s history. What a difference a year makes.

He once was offering bigger refunds — $2,000 — for everyone but high income people. That was, as Dean Baker did the math at the time, totally unaffordable, even ignoring that Trump is likely to have to pay some portion of the tariffs back, only to importers, not the consumers who have paid increased prices for consumer goods.

Doing the simple arithmetic, the country has 340 million people. If 10 percent of these people fit Trump’s definition of high-income, and therefore don’t get the rebate, roughly 300 million people would get the checks.

At $2,000 a piece it would come to $600 billion, more than twice what Trump is collecting from us with his import taxes. Since he’s already $330 billion short, how can Trump think he has money to pay down the national debt? Also, he seems not to know that our deficit this year is projected to be $1.8 trillion, so he is actually adding considerably to the debt and would be adding even more with his $600 billion tariff “rebate.”

So, I figured, promising a smaller number (but hiding the smaller amount in patriotic shlock) to a far smaller number of people would serve the purpose of the rebates — to generate public support for keeping the tariff revenue rather than paying them back — in a way that would be hard to oppose.

Who would begrudge service members a check, after all.

But once you give that $2.5 billion away (assuming the larger number is the correct one), you’ve started eating into the $100 billion you might be able to use to give money away.

The service members were going to get the check instead of everyone.

But according to Defense One, even that is not what is going on. Trump is taking money Congress allocated to expand housing allowances and paying it as a direct check instead.

President Donald Trump’s $1,776 checks for more than a million troops, announced Wednesday, come from Congressionally-allocated reconciliation funds intended to subsidize housing allowances for service members, a senior administration official confirmed.

During a prime-time TV address, Trump said he was “proud to announce” that “1,450,000 military service members will receive a special, we call ‘warrior dividend,’ before Christmas.” He added that to honor the nation’s founding, “we are sending every soldier $1,776. Think of that. And the checks are already on the way.”

The senior administration official told Defense One in an emailed statement late Wednesday evening that Defense Secretary Pete Hegseth directed the Pentagon to “disburse $2.6 billion as a one-time basic allowance for housing supplement” to all eligible service members ranks 0-6 and below.

“Congress appropriated $2.9 billion to the Department of War to supplement the Basic Allowance for Housing entitlement within The One Big Beautiful Bill,” the senior official said. “Approximately 1.28 million active component military members and 174,000 Reserve component military members will receive this supplement.”

It has nothing to do with tariffs (though was provided, without enough guidance to prevent such a gimmick, in the Big Ugly bill). Trump just told that lie along with his $18 trillion lie in order to claim his tariffs have been less disastrous than they have been.

Who knows? Maybe Trump will bankrupt the country to send rebates to cover over how much consumers have paid for these tariffs.

For now, though, Trump is simply piling lie on top of lie about it all.

The right wing response to the Vanity Fair profile of Susie Wiles (one, two) reveals a lot about the structure of Trump’s power.

While there’s nothing surprising in the profile, Chris Whipple caught Wiles admitting to failures those of outside the White House bubble all recognize, or making laughably false claims to cover them up. And while mostly the response to the profile has been a typical beltway feeding frenzy, much of the focus has been on those expressions of truth or false claims, including how some of them — Wiles’ claims that Trump was targeting Letitia James, her confession that Trump is seeking regime change in Venezuela, Trump’s awareness that Putin wants all of Ukraine — could have lasting legal and political repercussions.

Not so the right wing, though. Theirs has been a two-fold response: first, declaring not that the profile got anything wrong, much less made up any of the abundant direct quotes, but instead that they remain loyal to Susie Wiles. After everyone had performed their expression of loyalty, the right wing turned to complaining that photographer Christopher Anderson captured Trump’s aides’ ugliness and warts.

Behind those expressions of loyalty and vanity complaints, however, the profile includes a string of confessions that Trump, that Susie Wiles, that they all have failed.

Circling the motherfucking wagons

The immediate response was a performance of loyalty. First Wiles claimed in a (for her) very rare tweet that the profile had taken things out of context and ignored positive things she said. Then one after another Trump loyalist RTed that tweet and testified to how great she is and how loyal they are to her or she is to Trump.

The loyalty oaths were particularly amusing to watch through Chris LaCivita’s eyes. First he RTed Wiles’ tweet.

Then he tried to distract with yesterday’s scandal.

Then he posted one…

After another declaration of loyalty to Wiles. This Don Jr tweet — “When others cowered, she stood strong” is quite long and amusing in the original.

Scott Bessent’s claim of inaccuracy is especially notable given how Wiles described half of Trump’s advisors to be opposed to Trump’s tariffs (as I’ll show below).

LaCivita thought dumb boomerang memes would be persuasive.

More celebration of blind loyalty.

Failures hailing her role in their failure.

All leading up to this tweet, from the lady who used to pretend to be objective but now works with the former Trump spox who tried to hide behind the shrubbery, once.

Rachael Bade really did claim it was a big scoop to describe a “Wiles loyalist and Trump ally” explaining what was visible on Xitter for all to see as “circling the motherfucking wagons.”

Sure. It’s clear that’s what you were doing. But honestly, a good many people who read the profiles weren’t seeking to split the White House, they were seeking to understand what Trump’s low-key Chief of Staff does or thinks.

The loyalty that prevents you from seeing the failures she confessed doesn’t prevent us from seeing them.

Karoline Leavitt’s nasty gender-affirming care

Then people started complaining about the photography, particular a picture that revealed the slop on Karoline Leavitt’s face and the injection marks in her lips.

WaPo did a great interview with the photographer, Christopher Anderson, where he explained his view of photojournalism and truth.

I want to talk to you about the portraits that you did for Vanity Fair. As I assume you have heard, they’ve caused a bit of a splash on social media. Can you tell me how you conceived of them?

I conceived of it many years ago. I did a whole book of American politics called “Stump” (2014), where I did all close-ups. It was my attempt to circumnavigate the stage-managed image of politics and cut through the image that the public relations team wants to be presented, and get at something that feels more revealing about the theater of politics. It’s something I’ve been doing for a long time. I have done it to all sides of the political spectrum, not just Republicans. It’s part of how I think about portraiture in a lot of ways: close, intimate, revealing.

[snip]

The images are really arresting. What is your response to people who say that these images are unfair? There’s been a lot of attention about Karoline Leavitt’s lips and [what appear to be] injection sites.

I didn’t put the injection sites on her. People seem to be shocked that I didn’t use Photoshop to retouch out blemishes and her injection marks. I find it shocking that someone would expect me to retouch out those things.

[snip]

Were they coming camera-ready, or was there a hair-and-makeup team?

Most of them came camera-ready or with their own hair-and-makeup team. Karoline Leavitt has her own personal groomer that was there.

I mean, we don’t know if Karoline Leavitt still has that groomer today now that the photos are published.

Well, what can I say? That’s the makeup that she puts on, those are the injections she gave herself. If they show up in a photo, what do you want me to say? I don’t know if it says something about the world we live in, the age of Photoshop, the age of AI filters on your Instagram, but the fact that the internet is freaking out because they’re seeing real photos and not retouched ones says something to me.

Click through for the great quote about Stephen Miller’s plea for kindness.

The self-deceptions and truths from within the bubble

But none of this pushback — none of it — claims that lifelong chronicler of Chiefs of Staff Chris Whipple ever made up a quote.

Accordingly, that means no one has disputed Wiles’ admission that Trump’s policies have largely failed.

Here’s how Whipple summarized Trump’s term so far, close to the beginning of part one:

It’s been a busy year. Trump and his team have expanded the limits of presidential power, unilaterally declared war on drug cartels, imposed tariffs according to whim, sealed the southern border, achieved a ceasefire and hostage release in Gaza, and pressured NATO allies into increasing their defense spending.

At the same time, Trump has waged war on his political enemies; pardoned the January 6 rioters, firing nearly everyone involved in their investigation and prosecution; sued media companies into multimillion-dollar settlements; indicted multiple government officials he perceives as his foes; and pressured universities to toe his line. He’s redefined the way presidents behave—verbally abusing women, minorities, and almost anyone who offends him. Charlie Kirk’s assassination in September turbocharged Trump’s campaign of revenge and retribution. Critics have compared this moment to a Reichstag fire, a modern version of Hitler’s exploitation of the torching of Berlin’s parliament.

How he tells this story — though Wiles’ own assessments of Trump’s success or failure — is more interesting. The following, save the last one, are presented in the order Whipple addresses them in the profile.

End the congressional filibuster and remove Nicolás Maduro from power. [A November portrayal; results still TBD]

The agenda was twofold: ending the congressional filibuster and forcing Venezuelan president Nicolás Maduro from power.

Pardon just those who were January 6 “happenstancers.” [Wiles lies to cover up her failure to achieve this goal]

Wiles explained: “In every case, of the ones he was looking at, in every case, they had already served more time than the sentencing guidelines would have suggested. So given that, I sort of got on board.” (According to court records, many of the January 6 rioters pardoned by Trump had received sentences that were lighter than the guidelines.) “There have been a couple of times where I’ve been outvoted,” Wiles said. “And if there’s a tie, he wins.”

Preserve parts of USAID. [Complete failure, but one Marco Rubio is lying about]

Musk forged ahead—all throttle, no brake. “Elon’s attitude is you have to get it done fast. If you’re an incrementalist, you just won’t get your rocket to the moon,” Wiles said. “And so with that attitude, you’re going to break some china. But no rational person could think the USAID process was a good one. Nobody.”

[snip]

Did Rubio have any regrets about the untold number of lives that PEPFAR’s evisceration might cost? “No. First of all, whoever says that, it’s just not being accurate,” he told me. “We are not eviscerating PEPFAR.

Stephen Miller’s deportation policies. [In Wiles’ estimation, a failure]

Not long after the El Salvador deportation fiasco, in Louisiana, ICE agents arrested and deported two mothers, along with their children, ages seven, four, and two, to Honduras. The children were US citizens and the four-year-old was being treated for stage 4 cancer. Wiles couldn’t explain it.

“It could be an overzealous Border Patrol agent, I don’t know,” she said of the case, in which both mothers had reportedly been arrested after voluntarily attending routine immigration meetings. “I can’t understand how you make that mistake, but somebody did.”

Tariffs. [Wiles failed to prevent Trump’s worst instincts and the results have been worse than she imagined]

Wiles believed a middle ground on tariffs would ultimately succeed, she said, “but it’s been more painful than I expected.”

Invading blue cities. [Wiles says Trump won’t do this to stay in power]

Will the president use the military to suppress or even prevent voting during the midterms and beyond?

“I say it is categorically false, will not happen, it’s just wrongheaded,” she snapped.

November’s election. [Wiles knew they were in trouble, but even so was overoptimistic]

Wiles thought the GOP had a chance of electing the governor in New Jersey, but she knew they were in for a tough night.

The Epstein files. [Trump and Kash, both lying about what was in the files but that’s okay because MAGAts aren’t obsessed with Epstein]

For years, Kash has been saying, ‘Got to release the files, got to release the files.’ And he’s been saying that with a view of what he thought was in these files that turns out not to be right.”

[snip]

Wiles said. “It’s the Joe Rogan listeners. It’s the people that are sort of new to our world. It’s not the MAGA base.”

Murderboats and frivolous wars. [Pure self-deception]

“Not that he wanted to kill people necessarily, but stopping the killing wasn’t his first thought. It’s his first and last thought now.”

[snip]

“He wants to keep on blowing boats up until Maduro cries uncle. And people way smarter than me on that say that he will.”

Russian peace efforts. [Wiles says they’re lying about Russia wanting peace]

Trump’s team was divided on whether Putin’s goal was anything less than a complete Russian takeover of Ukraine. “The experts think that if he could get the rest of Donetsk, then he would be happy,” Wiles told me in August. But privately, Trump wasn’t buying it—he didn’t believe Putin wanted peace. “Donald Trump thinks he wants the whole country,” Wiles told me.

In October I asked Rubio if that was true. “There are offers on the table right now to basically stop this war at its current lines of contact, okay?” he said. “Which include substantial parts of Ukrainian territory, including Crimea, which they’ve controlled since 2014. And the Russians continue to turn it down. And so…you do start to wonder, well, maybe what this guy wants is the entire country.” (In Wiles’s office is a photograph of Trump and Putin standing together, signed by Trump: “TO SUSIE YOU ARE THE GREATEST! DONALD.”)

Trump would only spend 90 days on retribution. [Wiles is in denial]

“Yes, I do,” she’d replied. “We have a loose agreement that the score settling will end before the first 90 days are over.”

In late August, I asked Wiles: “Remember when you said to me months ago that Trump promised to end the revenge and retribution tour after 90 days?”

“I don’t think he’s on a retribution tour,” she said.

Trump’s biggest accomplishments: Peace and the Big Ugly

“I think the country is beginning to see that he’s proud to be an agent of peace. I think that surprises people. Doesn’t surprise me, but it doesn’t fit with the Donald Trump people think they know. I think this legislation [the so-called One Big Beautiful Bill], which funded the entire domestic agenda, is a huge accomplishment. And even though it isn’t popular in total, the component parts of it are. And that will be a very big deal in the midterms.”

That is, like the Epstein scandal more generally, Wiles either invents bubble-wrapped fictions about Trump’s own success, or concedes she, or Trump, has failed.

But Trump’s aides — the people complicit in this failure — don’t care.

They’re just going to circle the motherfucking wagons and demand loyalty.

I suppose I should have reminded readers, somewhere in my close tracking of Judge Colleen Kollar-Kotelly’s attempt to craft a nifty solution to a difficult Fourth Amendment question, that she authored a 2004 FISA opinion from which a decade of bulk collection on Americans arose.

I delayed doing so, in part, because Tulsi Gabbard has deprecated the link to the official version and so I need to go find a copy. But this post describes the substance of the opinion. This post describes how subsequent phone dragnet opinions relied on it. And this timeline explains how, after Kollar-Kotelly was just the second FISA Judge read into the unconstitutional Stellar Wind program, and after she raised concerns about it, a guy named Jim Comey refused to reauthorize it in its then current form, which led to a famous standoff in a hospital, much drama, but only limited (and still largely undisclosed!) changes in the program, before Kollar-Kotelly wrote an opinion authorizing bulk collection that would be the cornerstone for 11 more years of bulk collection.

Judge Colleen Kollar-Kotelly has a history with difficult Fourth Amendment decisions.

And she has a history with Jim Comey.

When we last reviewed this difficult Fourth Amendment question, Kollar-Kotelly had simply waved her hands over the original sins of unscoped seizures and overseized data targeting Dan Richman — which she deemed plausible Fourth Amendment violations but not something she had to deal with, she said, because she had found the later search of that likely unscoped data was itself a violation of the Fourth Amendment and so could apply a bunch of DC precedents that all addressed property that was, in the initial seizure, lawfully collected to data she agreed was plausibly also unlawfully collected. Then she ordered the government to send that unlawfully searched data to EDVA, where different precedents would apply, and where the government could get a warrant to access what they wanted.

In a motion to modify and clarify that was also, in a footnote, a motion for reconsideration, the government deftly asked to change the rules such that they would be able to keep the fruits of several iterations of unlawful searches, and Dan Richman would be gagged from revealing that’s what happened.

So here’s what Kollar-Kotelly — she of the history of difficult Fourth Amendment decisions and she with the two decade history with Jim Comey — has done since.

First, she issued an order bitching about the government’s last minute request and complaining that they didn’t raise these issues on the first go-around, but giving the government permission to keep anything derivative of those three iterations of unlawful seizures.

The Government’s [22] Motion, which was filed approximately one hour before the deadline for the filing of a certification of compliance set forth in this Court’s [20] Order, raises a variety of issues related to the handling of classified information and information that may be subject to the Government’s own privileges, including the attorney-client privilege and the deliberative process privilege. The Government could have-and should have-raised many of these issues earlier in its initial Response to Petitioner Richman’s [1] Motion for Return of Property, but it did not do so. The Court will clarify its [20] Order at greater length by separate order and, if appropriate, will request further briefing from the parties. For now, the Court notes three important clarifications:

[snip]

Further, this Court’s Order directed the return of Petitioner Richman’s own materials (and any copies of those materials), not any derivative files that the Government may have created. See Order, Dkt. No. 20, at 1 (directing the return of the original materials, copies of those materials, and any materials “directly obtained or extracted” from them); see also id. at 41 (explaining that the Court would not bar the Government from “using or relying on” the relevant materials in a separate investigation or proceeding). Accordingly, compliance with the Court’s Order will not intrude upon any of the Government’s privileges.

This order, by itself, would amount to permitting the government to use stuff tainted by a breach of attorney-client privilege (Jim Comey’s attorney-client privilege), something she has not dealt with at all.

Then yesterday, Kollar-Kotelly issued an order noting (in a footnote) the government request for reconsideration they buried in a footnote, but blowing it off …

1 In a footnote, the Government requests reconsideration of this Court’s merits ruling that the Government’s retention of the materials at issue violates Petitioner Richman’s Fourth Amendment right against unreasonable seizures. See Gov’t’s Mot., Dkt. No. 22, at 7 n.5. However, the primary focus of the Government’s [22) Emergency Motion is the proper scope of the remedy to be awarded. Accordingly, the Court focuses here on issues that are directly relevant to the issue of remedy.

… But also requiring (among other things) the parties to explain three things, with the following deadlines:

• By 9:00 a.m. ET on Wednesday, December 17, 2025, the government should share its great ideas on how to keep all this data secure at EDVA.
• By 10:00 a.m. ET on Wednesday, December 17, 2025, the government should explain what it has from the original searches.
• By 2:00 p.m. ET on Wednesday, December 16, 2025, Richman should explain what he wants back, some of which may be influenced by the 10AM briefing.

The order pertaining to that 10AM explanation betrays how inadequate the original baby-splitting solution was, not least because Kollar-Kotelly doesn’t unpack that the stuff the government originally seized from Richman is evidence — or at least includes it.

Second, the Government argues in its [22] Emergency Motion that the Court’s Order “appears to require the Government to delete or destroy evidence originally, and lawfully, obtained pursuant to search warrants issued by the U.S. District Court for the District of Columbia in 2019 and 2020.” Gov’t’s Mot., Dkt. No. 22, at 5. To be clear, the Court has not ordered the Government to delete or destroy any evidence; instead, it has ordered the Government to return certain materials to Petitioner Richman, while depositing others with a third-party custodian for safekeeping. However, to ensure that the remedy awarded in this case is appropriately tailored to the facts, the Court would benefit from more factual details regarding the Government’s execution of the search warrants issued in this District in 2019 and 2020. Id. Accordingly, it is ORDERED that, no later than 10:00 a.m. ET on Wednesday, December 17, 2025, the Government shall file with the Court a brief response to the following questions:

(1) Does the Government have in its possession a complete copy of any of the following:

(i) the “forensic image” of Petitioner Richman’s personal computer hard drive that the Government was authorized to search under the warrant issued in this District on August 27, 2019;

(ii) the information disclosed by Columbia University to the Government pursuant to the warrant issued in this District on October 22, 2019;

(iii) the information disclosed by Apple to the Government pursuant to the warrant issued in this District on January 30, 2020; or

(iv) the “contents of a hard drive … containing backup files of one Apple iPad 4 and one Apple iPhone 5S” that the Government was authorized to search under the warrant issued in this District on June 4, 2020?

(2) Under each of the four search warrants at issue, the Government was authorized to seize only responsive material, which constituted a subset of the information it was permitted to search. Did the Government create a separate file, disk, hard drive, or any other segregated collection of responsive material for any of the following:

(i) the material seized from Petitioner Richman’s personal hard drive pursuant to the warrant issued in this District on August 27, 2019;

(ii) the material seized from Petitioner Richman’s Columbia University email accounts pursuant to the warrant issued in this District on October 22, 2019;

(iii) the material seized from Petitioner Richman’s iCloud account pursuant to the warrant issued in this District on January 30, 2020; or

(iv) the material seized from the backup files of Richman’s Apple iPad 4 and Apple iPhone 5S pursuant to the warrant issued in this District on June 4, 2020? [my emphasis]

As Kollar-Kotelly alludes to elsewhere, these questions should have been answered before she made her original decision. But she doesn’t acknowledge that she would have needed this information, in part, to understand whether the first two seizures violated the Fourth Amendment, which — if they do — would mean her application of multiple precedents that all assume the initial seizure was lawful would be totally inapt.

But there are two reasons why even these belated questions are inadequate to her purpose.

First, as Kollar-Kotelly noted in her own opinion, which she cited via William Fitzpatrick’s opinion which in turn cited this FBI declaration, when the FBI searched all this data in September, they searched a full extraction of Richman’s phone and iPad.

For this search, an FBI agent was instructed to review “a Blu-ray disc that contained a full Cellebrite extraction and Reader reports” for two of Petitioner Richman’s devices to identify “conversations between [Petitioner Richman] and [Mr. Comey].”

As the full quote from the FBI declaration explained, when Francis Nero did that search, he received a Blu-ray sealed with red evidence tape.

On or about September 12, 2025, while assigned to the Director’s Advisory Team, I was requested by Special Agent Spenser Warren to review a Blu-ray disc that contained a full Cellebrite extraction and Reader reports of an iPhone and iPad backups. I was requested to review the Cellebrite extraction for conversations between RICHMAN and JAMES COMEY. SA Warren handled this agent a manilla envelope sealed with red evidence tape that contained the Blu-ray disc with the Cellebrite extraction.

We know this full extraction contained attorney-client communications. Kollar-Kotelly doesn’t ask, in her second question above, how privileged communications were treated back in 2019 and 2020. She needed to ask whether the FBI only scoped the data not covered by Richman’s privilege declarations (which is what happened, if they scoped it at all) or whether they gave him scoped materials on which to make privilege declarations. Whichever it is, though, there needs to be a question 3, because the government never had the right to search privileged materials (except, arguably, on the original image itself, because such searches were not yet explicitly prohibited).

More importantly, if Spenser Warren handed Nero the full extraction, then it doesn’t matter what happened in step 2 of Kollar-Kotelly’s question above, because the government simply searched, without a warrant, unscoped data that should have been destroyed. That red evidence tape may well be what the government did to ensure that the FBI didn’t snoop on unscoped data. If so, the smoking gun in this chain of unlawful seizures was the decision, by someone on the Director’s Advisory Team, to search unscoped data without a warrant. That’s not covered by Kollar-Kotelly’s questions at all.

The other reason Kollar-Kotelly’s questions are inadequate is because of this disclosure (which didn’t make Fitzpatrick’s opinion and so may not be before her).

5 The Order also required the government to provide, in writing, by the same deadline: “Confirmation of whether the Government has divided the materials searched pursuant to the four 2019 and 2020 warrants at issue into materials that are responsive and non-responsive to those warrants, and, if so, a detailed explanation of the methodology used to make that determination; A detailed explanation of whether, and for what period of time, the Government has preserved any materials identified as non-responsive to the four search warrants; A description identifying which materials have been identified as responsive, if any; and A description identifying which materials have previously been designated as privileged.” ECF No. 161 at 1-2.

Despite certifying on November 6 that it had complied with the Court’s Order, ECF No. 163, the government did not provide this information until the evening of November 9, 2025, in response to a defense inquiry. The government told the defense that it “does not know” whether there are responsive sets for the first, third, and fourth warrants, or whether it has produced those to the defense, and said that in that regard, “we are still pulling prior emails” and the “agent reviewed the filtered material through relativity but there appears to be a loss of data that we are currently trying to restore.” [my emphasis]

On November 9, in response to the same questions Kollar-Kotelly asked in her order but posed by Fitzpatrick, the government told Comey — but not in writing! — that they had no fucking clue what happened with the first, third, and fourth warrants, because something happened with Relativity, the software on which these distinctions would have been preserved. So they had to pull prior emails to figure out what the fuck they were doing searches on.

The government may still have no fucking clue what they’re dealing with, because they asked for a 48-hour extension on both their own deadlines.

Richman agreed to that delay but only if he also got an extension.

Counsel for Petitioner has informed the Government that he takes no position on this request, but respectfully requests that the Court provide Petitioner an equivalent extension of time to file his brief, see ECF No. 27 at 3, should the Court grant the Government’s motion.

Late yesterday, Kollar-Kotelly issued a docket order granting the government its two-day extension on the easier question — how to keep this data secure at EDVA — but just a two hour extension to the harder deadline — what the fuck happened with this data. She did not, however, grant Richman an extension at all, so his response must now be filed two hours after the government’s response.

The Court is in receipt of the Government’s 28 Motion for Additional Time to Respond to this Court’s 27 Order for supplemental submissions, which the Government filed at 6:28 p.m. ET this evening. The Government’s 28 Motion is GRANTED IN PART and DENIED IN PART. The Government’s Motion is GRANTED as to the 9:00 a.m. deadline for the submission of “best practices on safekeeping evidence,” which is CONTINUED to 9:00 a.m. ET on Friday, December 19, 2025. The Motion is GRANTED IN PART and DENIED IN PART as to the Government’s deadline to respond to the factual questions presented in this Court’s 27 Order. The Government shall file brief responses to these questions no later than 12:00 p.m. ET on Wednesday, December 17, 2025. The Motion is otherwise DENIED. Petitioner Richman’s response deadline is unchanged.

Again, Kollar-Kotelly needed answers to these questions before she crafted the baby-splitting solution. Because if the original data was overseized and then not preserved in its scoped form (or if someone fiddled with Relativity in the interim to muddle what data was properly seized in the first search), then her application of DC precedent was inappropriate. At least some of this data was — as far as we know (though there may be other warrants) — always unlawfully seized.

That 2004 opinion Kollar-Kotelly wrote was an attempt to solve an enormous problem caused by unlawful government spying, but it served as the cornerstone for 11 more years of unlawful government spying. This particularly baby-splitting solution may lack the gravity of that earlier opinion, but in its currently muddled form, has the potential of causing another decade of problems.

Update: DOJ’s response is here. They actually admit to the problem with Relativity (though don’t name Relativity and try to obscure the timing of DOJ dropping it, which almost certainly has to post-date the January 6 investigation).

These responses are provided with the qualification that the search warrants were obtained five and six years ago.

[snip]

Search warrants directed at these materials were issued by the United States District Court for the District of Columbia. These warrants included language for following a filter process for attorney-client privileged information. As to the iCloud account and backup files for the iPad 4 and iPhone 5S, these materials were combined and provided to Richman and his counsel for filtering. The filtered version was then provided back to the government for review. Correspondence reviewed by the present investigative team indicates that the primary case agent then committed to reviewing the filtered version through an e-discovery program. Between 2020 and 2025, the Department of Justice stopped using this e-discovery program and a loss of data occurred. The government has attempted to restore this data but has not been successful.

The government has contacted the primary case agent. The primary case agent stated that he always followed and complied with the terms of a search warrant, and that his behavior in this case would have been no different. However, due to the passage of time [redacted], the primary case agent could not specifically describe the process followed in 2019 and 2020.

In a redaction in this passage and an earlier one (for which DOJ appears not to have filed a motion to seal), they must describe something that happened to the original lead case agent. That is, for some reason he can’t fully reconstruct what he did five years ago.

And they have yet to reconstruct what was lost in dropping Relativity.

In short, they’re basically saying these warrant returns are so old, neither the person who managed them nor the software paid to preserve them are available to do so any longer.

Their solution to that, DOJ says, is for them to have a filter AUSA and a filter Agent review it all to find out if there is a segregated version within the larger set.

Finally, as to the materials described in this section, the government respectfully requests that the Court allow a filter FBI agent and a filter AUSA to review only the previously filtered versions, which, according to FBI records, are contained on the relevant storage devices. The purpose of this limited review would be to determine whether any sort of segregated version of responsive material exists on the storage devices.

This should change Kollar-Kotelly’s entire approach. DOJ confesses they have no fucking clue whether the data they have is legal or not.

But it likely will not.

Update: Richman’s response is here. It goes big, demanding that all materials be taken away from the government.