On the Misguided Tactical Conversations about Volume Two of the Jack Smith Report
Like everyone else, I badly want to see Volume Two of the Jack Smith report. If it were a fulsome report, it might give us explanations for the kinds of documents Trump hid in his bathroom, it might explain why there was a grant of clemency to Roger Stone with some tie to a Secret document about Emmanuel Macron in Donald Trump’s desk drawer, and it might reveal more about Kash Patel’s efforts to help Trump lie about the documents. It might even describe what investigators might have learned if Walt Nauta had cooperated.
Given the ways that Jack Smith pulled his punches in Volume One, however, I’m far less optimistic the report is as expansive as it could have been if it had adopted Robert Hur’s approach to declination decisions. It’s more likely the report would offer explanations for why Smith charged the case in SDFL and why he didn’t charge 18 USC 2071 — both of which would be useful for those who don’t understand those issues, but still wildly unfulfilling.
If Volume One is any indication, Smith did not use his report to get out previously unknown details.
Plus, I’m not sure what good it would do anyway. The most interesting response to Volume One, in my opinion, was seeing a lot of the same pundits who had complained that Jack Smith hadn’t released more information publicly making it clear they didn’t realize that most of the factual discussion was cited directly to the immunity brief Smith fought to release before the election, in October. Thanks for proving my point that you weren’t paying attention to the stuff that was getting released! Not to mention the Garland whingers who, in their misreading of the Jack Smith report, confessed they had never been reading the public documentation about how the investigation proceeded and weren’t going to before using it to attack Garland. You all failed to make something of this investigation when it could have mattered. It’s not clear how you’ll do better with Volume Two.
I think the House Judiciary Committee letter calling on Merrick Garland to release the report — something I want too! — by dismissing the case against Nauta and Carlos De Oliveira is the same kind of misguided intervention. Particularly given DOJ’s emphasis in court filings that Jamie Raskin has a constitutional entitlement to review the document in his function as Ranking Member of HJC, just like Dick Durbin has a heightened interest given his duty to advise and consent to the Kash Patel confirmation.
I’m no genius on criminal procedure, but I simply don’t understand how this would work. DOJ can’t just dismiss the case. They have to have to dismiss it somewhere in court, just like Bill Barr tried with Mike Flynn. I’m not even sure where you would do that, because there’s not currently a pending case. There’s an appeal of the complete dismissal of the case in the 11th Circuit, where you could dismiss the appeal. And there’s Aileen Cannon’s courtroom, where the legal status of the case is that everything that happened after November 18, 2022, after Jack Smith was appointed, is unconstitutional. If Cannon’s ruling holds, then arguably even writing the report was unconstitutional (which is why it was dumb, in my opinion, not to have written a two-part Volume Two, breaking out the stuff (to include the Kash Patel interview) that happened before Smith was appointed. Aileen Cannon is not going to let you dismiss the case, I promise you.
There’s something being missed in this discussion that’s worth pondering. It’s not Merrick Garland who made the decision to withhold Volume Two until Trump destroys the remaining case against Nauta and De Oliveira. It was Jack Smith who recommended that course of action.
Because Volume Two discusses the conduct of Mr. Trump’s alleged co-conspirators in the Classified Documents Case, Waltine Nauta and Carlos De Oliveira, consistent with Department policy, Volume Two should not be publicly released while their case remains pending.
Which Garland adopted.
I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing.
Given what we saw in Volume One, there are multiple possible reasons he may have made that recommendation. Possibly, as he did in Volume One, Smith is just trying to adhere to normal procedure as much as possible, to prove that he and any lawyers who attempt to remain at DOJ after next week never tried to pull a fast one on Trump. Possibly, Smith simply believes the legal posture of the case, in which ceding Aileen Cannon’s view that everything that happened after November 18, 2022 is unconstitutional would concede the report is too, makes releasing it impossible at the moment.
Possibly someone involved with all this believes there’s a different way to get the volume released.
Again, given what we see in Volume One, I assume it’s one of the first reasons: It really is department policy not to harm the trial rights of defendants (Mueller succeeded in releasing his report even though both Roger Stone and Yevgeniy Prigozhin’s trolls still had to stand trial, which led to many squabbles about redactions). For whatever well- or ill-considered or naive opinions, Smith really is trying to reassure everyone that everything is normal.
That said, there are some reasons to believe the report won’t get destroyed right away. One is that several people have already FOIAed it, creating legal problems (that Trump and possibly even Pam Bondi don’t care about) if it disappears. A far stronger one is that to investigate anyone from Jack Smith’s team, you need to preserve Jack Smith’s records.
I can think of several ways this report might still be liberated via other means.
But it’s worth noting that when it comes time to make Nauta’s appeal go away, every single person Trump wants at DOJ has a conflict: aspiring Deputy Attorney General Todd Blanche was Trump’s attorney on this, aspiring Solicitor General John Sauer his appeals attorney. Emil Bove, who will serve in the unconfirmed position of PADAG and will run the department starting Monday until others are confirmed, was also on Trump’s Florida team. And Pam Bondi joined an amicus before the 11th.
When Bondi, at least, was asked about her many conflicts in her confirmation hearing, she gave the standard rote answer: that she would consult with the career ethics officials at DOJ. That amounted to a tacit, non-binding commitment that she (and Bove, who’ll get there before her) won’t eliminate those key career officials. If that were to include Brad Weinsheimer, who supervised all of the Special Counsels Garland approved (and may have influenced the unsatisfying scope of Smith’s final report), that would put him the middle of these decisions.
As noted, even while DOJ seems to be pursuing a least-damage approach with Volume Two, they are establishing the prerogatives of Congress to access this report — and not just the report, but even underlying 302s from the investigation.
The Department has historically made materials available for in camera review by members of Congress as part of the process to accommodate the Executive Branch’s interests in protecting the confidentiality of sensitive information while ensuring that Congress can fulfil its own constitutional oversight functions.2 For example, when a congressional committee sought FBI Form 302 interview reports referenced in the Final Report of Special Counsel Robert Mueller, the Department reached an agreement with the Committee to make those reports available in camera, at the Department, pursuant to specified terms, with redactions to protect privileged and grand jury information. See Supplemental Submission Regarding Accommodation Process ¶¶ 1-2, In re: Application of the Committee on the Judiciary, U.S. House of Representatives, No. 1:19-gj-00048- BAH, ECF No. 37 (D.D.C. October 8, 2019).
2 Congress has recently, on multiple occasions, taken the position that it has a particularized legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels. See., e.g., Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 43, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 4, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 10, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024).
Wouldn’t it be better for Raskin to at least assert his own constitutional prerogative here, rather than a letter that doesn’t address the procedural means via which Garland could dismiss the case? Particularly given that, in the vacuum created by his silence, Trump is making Raskin’s partisanship cause to keep the document sealed?
The government does this despite knowing that these political actors will have every ability and incentive to use such information to undermine President Trump’s transition and his ability to govern our Nation moving forward.2 Nor is there any material doubt the ranking members will do so, given their immediate politicking on Volume I of Smith’s report, including extensive and hyperbolic commentary on the contents of that Volume. See Raskin, Ranking Member Raskin’s Statement on Special Counsel Jack Smith’s Report on President-Elect Donald Trump’s Election Subversion and Incitement of Insurrectionary Violence (Jan. 15, 2025); Durbin, Durbin Statement On Former Special Counsel Jack Smith’s Report On Trump’s Interference In The 2020 Election (Jan 14, 2025).
Thus, the government is not seeking, as it claims, to aid Congress in exercising its “oversight functions.” Doc. 703 at 3. Instead, by delivering Volume II to unashamed partisans, the government strategically aims to ensure the Volume’s public release. Although the government claims that a purported “agree[ment] to specified conditions of confidentiality,” id. at 4, would alleviate these concerns, it would do nothing of the sort. As the government well knows, the Constitution prohibits any enforceable restrictions on the ranking members’ use or disclosure of information in furtherance of their official duties. The ranking members could, for example, stand on the floor of the House or Senate and disclose the entire contents of Volume II, without fear of any legal consequence. U.S. CONST. art. I, § 6, cl. 1 (providing for Speech or Debate Immunity); Hutchinson v. Proxmire, 443 U.S. 111, 130 (1979) (“A speech by [a Senator] in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record.”). Thus, whatever “confidentiality agreement” the government purports to adopt (the terms of which the government has pointedly not provided the Court), it is entirely illusory, because no such agreement is enforceable. Disclosure to the ranking members is functionally equivalent to public disclosure. This, in turn, poses an extraordinary danger to President Trump’s ability and right to prepare for the Presidency free of such unconstitutional attacks by the incumbent administration.
If this report doesn’t come out, it can be made into an anvil to hang over the entire leadership of DOJ. To make it one, though, you need to establish clearly that Congress has equities in this document, too, and any abridgment of those equities will provide opportunity for Congress to intervene with DOJ.
Thus far, Congressional Democrats have chosen a far less effective route.
The Inadequate Declination Discussions in Both Special Counsel Reports
In a post in November and a podcast appearance with Harry Litman, I argued that the Special Counsel regulations mandating that prosecutors describe declination decisions, as well as prosecution decisions, might produce the most interesting part of Jack Smith’s report.
Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
After all, Robert Hur wrote a humdinger of a 388-page report that was nothing but declination decisions.
But in my opinion, neither Jack Smith nor David Weiss adequately fulfilled the terms of that mandate.
To be sure, Jack Smith did include several important sections describing declination decisions. As I laid out here, Smith described why prosecutors had not charged Trump with insurrection, the sole charge that could have disqualified him from returning to the presidency. A footnote explained that prosecutors had considered charging Trump under the Anti-Riot Act, but courts have struck down parts of it. The footnote also explained that because prosecutors “did not develop proof beyond a reasonable doubt that the conspirators specifically agreed to threaten force or intimidation against federal officers,” (presumably including Mike Pence), they did not charge Trump with conspiracy to injure an officer of the United States.
In a separate paragraph, Smith provided an unsatisfying answer about why he didn’t charge any of Trump’s co-conspirators.
Before the Department concluded that this case must be dismissed, the Office had made a preliminary determination that the admissible evidence could justify seeking charges against certain co-conspirators. The Office had also begun to evaluate how to proceed, including whether any potential charged case should be joined with Mr. Trump’s or brought separately. Because the Office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump–the head of the criminal conspiracies and their intended beneficiary–this Report does not elaborate further on the investigation and preliminary assessment of uncharged individuals. This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.
My suspicion is that the prosecution, which included two prosecutors who dealt with the aftermath of Trump pardoning his way out of criminal exposure in the Russian investigation, recognized it was not worth charging others until such time as Trump couldn’t pardon their silence. That is consistent with the seeming late addition of a Ken Chesebro interview, which seems to reflect his troubled efforts to cooperate in state cases. But if this investigation looked like it did because of Trump’s past success at pardoning his way out of criminal exposure, it would be really useful to explain that.
It would have been useful, too, to point out that the same Speech and Debate protections that created a 16-month delay in obtaining texts from Scott Perry’s phone also made it impossible to charge any of the Members of Congress who facilitated Trump’s coup attempt. Those who don’t understand the breadth of Speech and Debate need to be told that.
So Smith did include some of his declination decisions, but some of those discussions are less than satisfying.
But there are two areas where more might have been useful. For example, for some time, prosecutors investigated whether Trump used funds raised for election integrity on other things, like providing big contracts to people who had remained loyal to him. If Trump defrauded his rubes but for some reason prosecutors couldn’t charge him for it, it would be useful to lay that out. That prong of the investigation is unmentioned in the report, which in many respects appears designed to avoid antagonizing Trump.
There’s a more important discussion that does appear in the report, but which is not treated as a prosecutorial decision. In the section on Litigation Challenges, Smith includes a long discussion titled, “Threats and Intimidation of Witnesses.”
A significant challenge that the Office faced after Mr. Trump’s indictment was his ability and willingness to use his influence and following on social media to target witnesses, courts, and Department employees, which required the Office to engage in time-consuming litigation to protect witnesses from threats and harassment.
Mr. Trump’s resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies. A fundamental component of Mr. Trump’s conduct underlying the charges in the Election Case was his pattern of using social media-at the time, Twitter-to publicly attack and seek to influence state and federal officials, judges, and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr. Trump’s scheme. After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed. See ECF No. 57 at 3 (one witness identifying Mr. Trump’s Tweets about him as the cause of specific and graphic threats about his family, and a public official providing testimony that after Mr. Trump’s Tweets, he required additional police protection). In the context of the attack on the Capitol on January 6, Mr. Trump acknowledged that his supporters “listen to [him] like no one else.” 260
The same pattern transpired after Mr. Trump’s indictment in the Election Case. As the D.C. Circuit later found, Mr. Trump “repeatedly attacked those involved in th[e] case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony,” Trump, 88 F.4th at 1010. Those attacks had “real-time, real-world consequences,” exposing “those on the receiving end” to “a torrent of threats and intimidation” and turning their lives “upside down.” Id. at 1011-1012. The day after his arraignment, for example, Mr. Trump posted on the social media application Truth Social, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Id. at 998. The next day, “one of his supporters called the district court judge’s chambers and said: ‘Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.'” Id. 26 l Mr. Trump also “took aim at potential witnesses named in the indictment,” id. at 998-999, and “lashed out at government officials closely involved in the criminal proceeding,” as well as members of their families, id. at 1010-1011.
To protect the integrity of the proceedings, on September 5, 2023, the Office filed a motion seeking an order pursuant to the district court’s rules restricting certain out-of-court statements by either party. See ECF No. 57; D.D.C. LCrR 57.7(c). The district court heard argument and granted the Office’s motion, finding that Mr. Trump’s public attacks “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” ECF No. 105 at 2. Because no “alternative means” could adequately address these “grave threats to the integrity of these proceedings,” the court prohibited the parties and their counsel from making public statements that “target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” Id at 3. The court emphasized, however, that Mr. Trump remained free to make “statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that [he] is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of[his] current political rivals.” Id. at 3.
Mr. Trump appealed, and the D.C. Circuit affirmed in large part, finding that Mr. Trump’s attacks on witnesses in this case posed “a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function,” with “the undertow generated by such statements” likely to “influence other witnesses” and deter those “not yet publicly identified” out of “fear that, if they come forward, they may well be the next target.” Trump, 88 F.4th at 1012-1013. Likewise, “certain speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of th[e] case,” since “[m]essages designed to generate alarm and dread; and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration of justice.” Id at 1014. [snip]
Sure, this was treated as a litigation issue. But, in theory, there were alternative means to prevent Trump from attacking witnesses. When Jan6er Brandon Fellows — like Trump accused of obstruction — made similar threats, but without the big mouthpiece that makes it so dangerous, Trump appointee Trevor McFadden put him in an extended pretrial detention. You were never going to be able to treat Trump like a normal pretrial defendant, but shouldn’t you make that point?
More importantly, witness intimidation is also a crime. It’s the same statute, 18 USC 1512, under which Trump was charged. In fact, when Trump challenged his gag before the DC Circuit, Patricia Millett asked John Sauer where criminal witness tampering ended and the kinds of threatening language he was using began (and she treated the means by which Trump makes threats at length in her opinion upholding much of the gag).
Judge Millett then tries a different tack. She wants to know if Sauer concedes that a trial judge can constitutionally limit a criminal defendant’s speech in any way beyond what’s already limited by criminal laws, like the witness tampering statute. She notes that the Supreme Court’s conception of even the clear and present danger test is still that it is a balancing test that requires consideration of the weighty constitutional interest in protecting the integrity of a criminal trial as well as the First Amendment interests of the defendant.
Sauer responds that Brown guarantees the defendant “absolute freedom” on core political speech.
“So there is no balance,” says Judge Millett. She adds that calling it “core political speech” begs the question of whether it is in fact political speech or whether it is speech “aimed at derailing or corrupting the criminal justice process.” Sauer responds that Trump’s campaign speech is “inextricably entwined” with freely responding to the entire election interference prosecution.
Trump’s ability and willingness to sic mobs on all his enemies is the core of his conduct, both on January 6, during this litigation, and going forward. And the incoming Solicitor General argued that such threats and intimidation is “core political speech.”
It is the reason he threatens democracy in America.
Yet in discussing his thinking about how to deal with the threat posed by Trump’s threats, Smith didn’t even discuss why Trump could threaten Mike Pence in advance of a trial in which Pence would be expected to testify about how Trump almost got him assassinated without being charged with witness tampering.
With no awareness, Trump’s witness tampering became a litigation challenge, rather than the crime it might be treated as for anyone else.
Which brings me to David Weiss’ report, which is nothing short of pee my pants hysterical. It is riddled with procedural and evidentiary problems, and wild refashionings of the public record. Though I commend Derek Hines for finally ending his practice of fabricating what Hunter Biden’s memoir says, fabrications he relied on repeatedly to convince Judge Noreika there was no selective prosecution and to convince the jury of Hunter’s guilt; I hope to return to this to show that, by abandoning his fabrications, Hines actually proves he didn’t have the evidence to prosecute Hunter he claimed to have.
Much of the report is a “doth protest too much” effort to claim that the investigation wasn’t riddled with political influence. But tellingly and fucking hilariously, all those complaints are directed to Joe Biden, including this accusation:
Politicians who attack the decisions of career prosecutors as politically motivated when they disagree with the outcome of a case undermine the public’s confidence in our criminal justice system.
Weiss blames Joe Biden for undermining the public’s confidence in our criminal justice system even though his discussions of Hunter Biden’s claims of selective prosecution, Weiss made no mention of the very specific references Hunter made to Trump’s interventions in the case, including Trump’s public attack on the outcome of the original plea deal that contributed, according to Weiss’ own sworn testimony, to threats that led him to worry for the safety of his family.
“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”67
“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”68
“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .” 69
[snip]
“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. . . . ”
After spending much of his report attacking Joe Biden, Weiss claimed, “when politicians expressed opinions about my conduct, I ignored them because they were irrelevant.”
I hope to lay out all the other hilarity before such time as Weiss gets dragged before Congress.
Weiss’ charging decisions have flaws. My favorite is how, after dutifully laying out that Principles of Federal Prosecution require considering whether the suspect “is subject to effective prosecution in another jurisdiction,”
Even when a prosecutor determines that the person has committed a federal offense and that the evidence is sufficient to obtain a conviction, the Principles require that he also assess whether three other factors exist that may counsel against prosecution:
[snip]
(2) the person is subject to effective prosecution in another jurisdiction; or
Weiss then ignores the fact that Hunter was subject to charges in Delaware, which declined to prosecute.
It’s in the declinations, though, where David Weiss proves he’s falsely disclaiming selective prosecution. Several times, Weiss plays coy rather than explaining why he didn’t charge things, like tax crimes associated with 2014 and 2015, even though he stated under oath in November 2023 that he would have the “opportunity in the submission of a report to address such matters.”
19 26 U.S.C. § 6103(a) prohibits the disclosure of “return information,” which includes information disclosing “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Id. § 6103(b)(2)(A). Accordingly, I cannot publicly discuss any other tax years that may have been under investigation. See Snider u. United States, 468 F.3d 500, 508 (8th Cir. 2006).
I assume Biden is happy that Weiss didn’t lay out how Weiss was still pursuing Kevin Morris’ support for Hunter even after the guilty verdicts (but as I’ll show one of his temporal games involves just that),
President Biden has chosen to issue a “Full and Unconditional Pardon” for Mr. Biden covering “those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.” 152 Accordingly, I cannot make any additional charging decisions as to Mr. Biden’s conduct during that time period. It would be inappropriate to discuss whether additional charges are warranted.
But Weiss didn’t have the integrity, as Jack Smith did, to admonish, “This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.” He lets the rabid mobs believe they are.
It’s in how Weiss buries his own selective prosecution where his declinations are most corrupt. In his letter conveying the report to Merrick Garland, he describes that he is adhering to Department policy by not identifying uncharged third parties.
Therefore, in drafting this report, I was mindful of Department policies that caution restraint when publicly revealing information about uncharged third parties. Specifically, with respect to “public filings and proceedings,” Justice Manual § 9-27.760 provides that prosecutors “should remain sensitive to the privacy and reputation interests of uncharged parties,” and that it is generally “not appropriate to identify . . . a party unless that party has been publicly charged with the misconduct at issue.” 7 The Justice Manual also sets forth factors to guide the disclosure of information about uncharged individuals, such as their privacy, safety, and reputational interests; the potential effect of any statements on ongoing criminal investigations or prosecutions; whether public disclosure may advance significant law enforcement interests; and other legitimate and compelling governmental interests.
As a result, David Weiss doesn’t explain why he prosecuted Hunter Biden for lying on a gun form and he prosecuted Biden nut Alexander Smirnov for lying to his FBI handler in an attempt to frame Joe Biden, but he didn’t prosecute anyone from the gun store who allegedly engaged in the same kind of conduct that Hunter Biden and Alexander Smirnov did: make a false statement on a gun form and also coordinate a story in an effort to … create a political attack on Joe Biden during an election year.
The reasonable reasons why Weiss decided to immunize Ron Palimere yet charge Hunter all debunk much of the rest of his report, specifically with regards to deciding there was plenty of evidence to charge a gun crime in 2023, before entering into the failed plea deal. Either prosecutors knew Palimere had doctored the form when Weiss made that supposed prosecutorial decision, or (as he implied in court filings) he only discovered it when Hunter’s lawyers raised it, and he gave Palimere immunity so he could still win conviction against Hunter, in which case he never looked at the evidence before charging Hunter (which is consistent with virtually every other fact in the case).
Still, it’s selective prosecution. Prosecute the gun crime that Republicans — including Palimere — demanded be prosecuted, but immunize Palimere, who testified to treating other VIP customers similarly.
And Smith demonstrates that, contra Weiss, one can adhere to Justice Manual requirements yet still admit there was another suspected crime. In his section explaining why he didn’t charge Trump’s co-conspirators, he revealed that he did refer a subject of the investigation to another US Attorneys office.
In addition, the Office referred to a United States Attorney’s Office for further investigation evidence that an investigative subject may have committed unrelated crimes.
Weiss could have used a similar approach to describe that he immunized someone — someone who would pose an ongoing risk to the public if he continues to engage in the same behavior — for effectively the same crime for which he prosecuted Hunter Biden.
But that would give up his entire game.
Whatever else these Special Counsel reports reveal about our justice system, the blind spots both Special Counsels use to coddle Trump confirm that Special Counsels will never be able to hold Trump accountable for the existential threat he poses to democracy.
What Jack Smith Didn’t Say about the January 6 Investigation
As part of Kyle Cheney and Josh Gerstein’s summary of the Jack Smith report, they argued that “Smith [came] to Garland’s defense” regarding his conduct of the January 6 investigation before Smith was appointed, pointing to Smith’s review of certain legal fights, to include the Executive Privilege fight.
Smith comes to Garland’s defense
A common sentiment on the left is that Garland was too deferential to Trump after Joe Biden took office and failed to unleash the full might of the department on the former president for nearly two years. The delay, critics say, made it much more difficult for Smith — once he was appointed in November 2022 — to bring Trump to trial before the 2024 election.
But Smith’s report emphasized that the Justice Department was aggressively investigating leads related to Trump long before the special counsel’s tenure began. Litigation tactics by Trump and his allies, Smith argued, were the key factors that slowed the process to a crawl.
For example, Twitter, newly purchased by Elon Musk, delayed Smith’s effort to access Trump’s account data for weeks despite a court order that ultimately resulted in the company being held in contempt and fined $350,000.
It took Smith more than a year to obtain text messages between Rep. Scott Perry (R-Pa.) and Trump DOJ official Jeffrey Clark. And the department spent months fighting to access communications of John Eastman, a lawyer who helped devise Trump’s last-ditch efforts to remain in power.
The most protracted battles of all stemmed from Trump’s “broad invocation of executive privilege to try to prevent witnesses from providing evidence,” Smith wrote. It took months of secretive legal proceedings to secure testimony from Trump White House aides such as Mark Meadows, Dan Scavino and Pat Cipollone. Former Vice President Mike Pence also resisted testifying until a court ordered him to reveal some — but not all — details about his interactions with Trump. Smith noted that judges broadly rejected Trump’s privilege claims, with one holding that he was engaged in an “obvious” effort to delay the investigation.
That led to Garland whingers like Ryan Goodman to imagine he knows better than Cheney and Gerstein, who between them have been among the most aggressive in liberating and reporting on documentation pertaining to the investigation. Goodman pointed to a misleading passage in Smith’s report which dates the Executive Privilege fight to August 2022, which describes when “executive privilege litigation” occurred (my emphasis).
Most of the executive privilege litigation in this case took place in five sealed proceedings between August 2022 and March 2023 concerning the testimony of fourteen witnesses in total. See Media Access ECF No. 32 (notice attaching district court orders and memorandum opinions). In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s, including by issuing subpoenas for testimony before the grand jury.
Goodman complained that it took “nineteen months” after January 6 before DOJ “‘began to seek’ former USG officials testimony.”
“In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s.” Nineteen months after Jan. 6: DOJ “began to seek” former USG officials testimony.
For added context: August 2022 is after the House Select Committee had already completed its summer 2022 public hearings.
Other data show the slow start.
George Conway, piggybacking off Goodman’s error, claimed this started “*after* the House Jan. 6 Committee had held eight of its nine televised evidentiary hearings.”
Only, Goodman was misreading the Smith report and in the process demonstrating that he had not read the underlying documents.
The first opinion listed in Jack Smith’s appendix on the Executive Privilege fight, 22-gj-25, describes that the fight actually started in June, when prosecutors got approval to disclose grand jury materials and used it to write subpoenas, almost certainly sent to Marc Short and Greg Jacob. That passage makes clear that prosecutors got the White House Counsel to waive Executive Privilege (thereby adhering to the DOJ contacts policy), but Trump stalled for several weeks, and then got the witnesses’ attorneys to start asserting privilege.
So, contrary to Conway’s mistaken claim, this started no later than the first televised January 6 Committee hearing on June 9 (and probably, because prosecutors had already gotten approval to share grand jury information, even before that one).
Smith’s representation of these legal fights pertained to “litigation” — the actual legal filings — and only to the extent they continued into his own work. That’s evident from his appendix, which excludes some known legal fights. Indeed, Cheney and Gerstein actually themselves overstate what Smith includes in his report: While he included the relevant docket in his appendix, Smith barely addressed the 16-month fight (starting in August 2022) over the content in Scott Perry’s phone in the text of his report (his Speech and Debate discussion mostly pertained to Mike Pence’s fight in early 2023). And Cheney and Gerstein suggest that Smith addressed the fight over content from John Eastman, which Smith did not (nor did he include those filings in the report). That fight began sometime before May 26, 2022, by which point Beryl Howell had had hearings on a filter protocol for email accounts including Eastman and others (Cheney wrote more about that fight here).
To be clear: as far as is known, Goodman is only off by two months in his claim that DOJ did not try to speak to White House personnel until August 2022; it was June. But both he and Conway are wrong that the J6C hearings preceded this fight. You can certainly believe, as Goodman obviously does, that the best way to conduct the investigation was to start with White House personnel who would and did loop in Trump (and, as it happened, hasten the time he declared his candidacy), rather than starting with Co-Conspirator #1 and then #2, as DOJ proceeded. Goodman had no way of knowing when he started this complaint that SCOTUS would throw out much of the testimony from White House officials anyway, but he does now. If we’re engaging in counterfactuals, we can say with some confidence that approach would have been stymied even more effectively by SCOTUS.
Goodman also complained today that DOJ pursued the money trail and suspected communications with the Proud Boys and Oath Keepers immediately, both of which theories had solid evidence (likely arising from the mishandled Brandon Straka prosecution and the Owen Shroyer arrest) behind them. The money trail ended up being a dry hole; the comms angle ended up being inconclusive. But that’s the kind of thing Goodman and his ilk were demanding in real time — multiple prongs to pursue the case. Follow the money!
Instead, prosecutors’ most productive 2021 efforts appears to be getting an SDNY judge to allow DOJ to use the existing Special Master review for phones seized from Rudy Giuliani in April 2021 to prioritize obtaining the January 6 content. DOJ started with Co-Conspirator #1, and did so in a way that Trump had limited ability to obstruct. And from there, they seized one after another phone: John Eastman and Jeffrey Clark in June 2022, Scott Perry in August 2022, Boris Epshteyn and Mike Roman in September 2022, all of which would have had delays (not reflected in Jack Smith’s report because none of those have been unsealed) because of attorney-client, Speech and Debate, or technical exploitation issues, yet all of which would have been necessary given their reliance on encrypted apps. (This post argues that Smith likely didn’t get the content of Roman and Epshteyn’s phones until after he first indicted Trump.) You were never going to avoid getting the co-conspirator phones, because this coup was planned on encrypted apps and all of them fought disclosure. It appears that DOJ opportunistically seized the first of those on the first day there was a confirmed DAG to approve doing so. It is also clear that that wasn’t enough.
But if you’re going to make these complaints about what you read in Jack Smith’s report, you should note what else Smith said. The January 6 Committee work “comprised a small part of the Office’s investigative record,” but before Smith could use anything from J6C, prosecutors first had to “develop[] or verif[y those facts] through independent interviews and other investigative steps.”
The Office’s investigation included consideration of the report issued on December 22, 2022, by the U.S. House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Capitol, as well as certain materials received from the Committee. Those materials comprised a small part of the Office’s investigative record, and any facts on which the Office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps. During the prosecution of the Election Case, Mr. Trump alleged that the Select Committee and Special Counsel’s Office were one and the same and sought additional discovery about the Select Committee’s work. The district court rejected the claim. See ECF No. 263 at 47 (concluding that Mr. Trump has “not supplied an adequate basis to consider the January 6 Select Committee part of the prosecution team”). Regardless, the Office provided or otherwise made available to Mr. Trump in discovery all materials received from the Select Committee. See ECF No. 263 at 47 (“the Government states that it has already produced all the records it received from the Committee”).
We know from the immunity appendix that Jack Smith had productive follow-up interviews with Bill Barr, Ronna McDaniel, and Jason Miller, among others, to say nothing about more extensive cooperation with Eric Herschmann and Mike Pence’s privilege-waived interview(s).
But validating what J6C did could not start until J6C released transcripts in December 2022, after a 3-7 month delay.
The timeline below reflects the delay, from April to December 2022, in getting J6C transcripts (in part for good reasons; once DOJ got them, they were going to have to share with all January 6 defendants). The important delay, however, came in June, when prosecutors realized they had pending events, most obviously the Proud Boys trial, which for discovery reasons and to validate their most important cooperating witness, Jeremy Bertino, they needed to delay (and did, from August to December 2022) until those transcripts were released. At that point they believed those transcripts would come out in early September, which is what drove their trial schedule; but they didn’t come out until December.
This post and this post describes the predictable damage that that delay did to the Proud Boys case (which guilty verdict would be necessary to implicate Trump in insurrection). This post describes how prosecutors were able to use J6C transcripts that were done by June 2022 to identify the single most direct ask from Trump via Rudy Giuliani to overturn votes (one which likely relied on having exploited Rudy’s phone). Again, that clarification was delayed by 6 months. If you want to complain about delays — and there definitely appears to have been a delay from February to May 2022 when (per that famous WaPo story) FBI resisted that prong of the investigation — then you need to complain as well about the J6C delay of the same length.
But it’s not clear any of this would matter. SCOTUS had the ability, which they exercised, to stall all of this; had Trump lost, SCOTUS still would have gotten at least a second chance to weigh in before trial. And unless Smith superseded to add insurrection charges, Trump still would not be disqualified from running for office.
Barring Mitch McConnell or John Roberts doing the right thing, this battle was lost politically. And no amount of second guessing strategic decisions that ended up being auspicious given SCOTUS’ subsequent rewriting of the Constitution can change that. Indeed, the second guessing distracts from effective efforts to minimize Trump’s damage going forward.
Update: I’ve changed the language regarding prosecutors’ search of comms showing ties between the militias and Trump. I’ve added the Oath Keepers, whose ties to Stone were a subject of the investigation even before Garland was confirmed. I’ve deemed the comms angle inconclusive rather than a dry hole. Roger Stone was ultimately implicated in the Proud Boys’ obstruction of the vote certification via his actions at a January 3 rally in Florida (though not via the Proud Boy leaders). In December 2023, prosecutors took steps to more concretely lay out how Trump had sparked Proud Boy organizing.
Timeline
January 4, 2021: DC authorities seize Enrique Tarrio’s phone
January 25, 2021: Stop the Steal VIP Brandon Straka arrested; DOJ IG opens probe into Jeff Clark and others
February 17, 2021: First allegedly cooperative interview with Straka (Straka ultimately provided details on Ali Alexander’s Stop the Steal list, among other things, but the FBI almost certainly mishandled the entire Straka case, including by not probing his role at TCF Center in Michigan)
March 5, 2021: Second allegedly cooperative interview with Straka
March 11, 2021: Merrick Garland sworn in; in first meeting with investigators he encourages them to follow suspected money laundering behind payment for the rally
March 17, 2021: DOJ makes first tie between Oath Keepers investigation and Roger Stone
April 21, 2021 (Lisa Monaco’s first day on the job): DOJ obtains warrant targeting Rudy Giuliani’s cell phones in Ukraine investigation
April 28, 2021: DOJ seizes multiple devices from Rudy, including the phone he used leading up to January 6
June 23, 2021: First Oath Keeper who interacted with Stone enters into cooperation agreement
August 19, 2021: Alex Jones sidekick Owen Shroyer, who participated in Friends of Stone list and served as a communication hub between Proud Boys and others, arrested
September 2021: DOJ subpoenas records from Sidney Powell grift
September 3, 2021: SDNY makes an ultimately successful bid to review all content on Rudy’s devices for privilege (making such content immediately available if and when DOJ obtains January 6 warrant targeting Rudy)
Fall 2021: Thomas Windom appointed to form fake elector team
October 28, 2021: Merrick Garland tells Sheldon Whitehouse DOJ is following the money of January 6
November 2, 2021: Special Master Barbara Jones releases first tranche of materials (through date of seizure in April 2021) from Rudy’s phones, including device containing many of Rudy’s January 6 communications
November 22, 2021: Trump appointee Carl Nichols asks James Pearce whether 18 USC 1512(c)(2) might be applied to someone like Trump (he would go on to issue an outlier opinion rejecting the application)
December 2021: NARA and Mark Meadows begin process of completing his record of PRA-covered communications
December 10, 2021: Judge Dabney Friedrich (a Trump appointee) upholds application of 18 USC 1512(c)(2) to January 6
January 5, 2022: Merrick Garland reiterates that DOJ is investigating the financial side of January 6
Mid-January 2022: DOJ finally obtains contents of Tarrio’s phone
January 19, 2022: Jones releases remaining content from Rudy’s phones; SCOTUS declines to review DC Circuit rejection of Trump’s Executive Privilege claims with respect to January 6 subpoenas
January 25, 2022: Lisa Monaco confirms DOJ is investigating fake electors plot
January 31, 2022: DOJ opens grand jury investigation
February 18, 2022: In civil cases, Judge Amit Mehta rules it plausible that Trump and militias conspired to obstruct vote certification, as well that he aided and abetted assaults and also that it is plausible Trump used incitement not protected by the First Amendment
March 2, 2022: Oath Keeper in charge of Stone security on January 6, Joshua James, enters into cooperation agreement
March 7, 2022: Carl Nichols first requires implication of documentary evidence for 18 USC 1512(c)(2)
March 28, 2022: Judge David Carter issues crime-fraud ruling covering John Eastman’s communications with and on behalf of Trump
April 13, 2022: After two month stall, FBI finally approves their side of investigation
Probable April 2022 (based on how long it took for filter protocols elsewhere): Warrant for Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer emails
April 2022: DOJ requests transcripts from J6C
May 2022: DOJ subpoenas all NARA records provided to J6C
May 26, 2022: Subpoenas for fake electors plot including Rudy, John Eastman, Boris Epshteyn, Bernie Kerik, and Jenna Ellis, among others; filter protocol for email accounts of Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer
June 6, 2022: DOJ charges Proud Boy leaders with seditious conspiracy
June 9, 2022: In Proud Boys hearing, prosecutors say they expect to get J6C transcripts in September
June 15, 2022: Subpoena to Marc Short and Greg Jacob; letter to J6C renewing request for transcripts
June 16, 2022: DOJ agrees to delay Proud Boys trial from August 9 to December 12 because of the transcripts
June 21, 2022: Second set of fake electors subpoenas, adding Mike Roman and others, warrants for NV GOP officials and GA official
June 22, 2022: DOJ searches Jeffrey Clark’s home and seizes his phone
June 23, 2022: DOJ completes exploitation (but not scoping) of Shroyer’s phone;
June 24, 2022: Ali Alexander grand jury appearance; Warrant approved for Clark Gmail account
June 27, 2022: Then Chief Judge Beryl Howell permits prosecutors to obtain emails between Scott Perry and Clark and Eastman
June 28, 2022: DOJ seizes John Eastman’s phone
July 22, 2022: Marc Short appears before grand jury
August 9, 2022: DOJ seizes Scott Perry’s phone
August 17, 2022: Filter team notifies Clark of auto-biography dispute
August 2022: Mark Meadows provides previously withheld PRA covered materials to NARA
Early September, 2022: Pre-election legal process includes seizure of Boris Epshteyn and Mike Roman’s phones, subpoenas to key aides including Dan Scavino, Bernie Kerik, Stephen Miller, Mark Meadows, subpoenas pertaining to Trump’s PAC spending
September 27, 2022: Howell approves sharing of memoir
October 13, 2022: Marc Short and Greg Jacob make second, privilege-waived grand jury appearance
November 18, 2022: Merrick Garland appoints Jack Smith
December 2, 2022: Pats Cipollone and Philbin make second, privilege-waived grand jury appearance
~December 7, 2022: J6C provides at least some transcripts to DOJ (which are turned over to Proud Boys the following day)
December 21, 2022: J6C publicly releases transcripts promised in September
December 2022: Rudy Giuliani subpoena asks for information on his payment
January 17, 2023: Warrant for Trump’s Xitter account
February 9, 2023: Mike Pence subpoenaed; Xitter complies with Trump warrant
February 23, 2023: DC Circuit hears Scott Perry’s challenge to order providing access to his phone content
March 9, 2023: Judge Kollar-Kotelly orders Peter Navarro to turn over PRA-covered contents from Proton Mail account
March 28, 2023: Chief Judge Jeb Boasberg rules Mike Pence must testify (though protects some areas on Speech and Debate grounds)
April 4, 2023: DC Circuit declines to stay Beryl Howell ruling ordering testimony from Mark Meadows and others
April 7, 2023: DC Circuit upholds 1512(c)(2)
April 27, 2023: Mike Pence testifies before grand jury
August 1, 2023: Jack Smith indicts Trump
December 1, 2023: DC Circuit issues Blassingame and Tanya Chutkan rules against Trump on immunity
December 11, 2023: Jack Smith asks SCOTUS to expedite appeal
December 13, 2023: SCOTUS grants cert to Fischer’s 1512(c)(2) appeal
December 19, 2023: Boasberg orders Perry to turn over non-Speech and Debate privileged comms
December 2023 to August 7, 2024: SCOTUS delays January 6 case
January 9, 2024: DC Circuit argument
February 6, 2024: DC Circuit Immunity decision
May 2024: Original trial date
June 28, 2024: SCOTUS narrows application of 18 USC 1512(c)(2)
July 1, 2024: SCOTUS immunity decision
August 7, 2024: Chutkan receives mandate from immunity decision
August 27, 2024: Jack Smith supersedes Trump to accommodate SCOTUS immunity and obstruction rulings
January 7, 2025: Jack Smith report
How Right Wingers Rushed to DEI Hire Pete Hegseth
Pete Hegseth is wildly unqualified to run DOD. He described yesterday the most people he had ever supervised was 100. The non-profit budgets that went broke under his stewardship were in the $10 million range. He has never supervised an audit yet claims he’ll be the guy who finally ensures the Pentagon passes one.
Roger Wicker seemed certain that Hegseth wasn’t man enough to withstand a second round of questioning — a concession that Hegseth is weaker than Hillary Clinton, I guess, since she once sat for 11 hours of questioning.
As such a manifestly unqualified candidate, his increasingly certain confirmation to be Defense Secretary is the quintessential DEI hire, someone hired for his culture and identity rather than his qualifications. The hiring of someone for who he is and not any qualifications he might have is precisely what right wingers have been leading jihads against for years. And yet the entire MAGA world is rushing headlong to install a guy with no qualifications to run DOD.
To be sure, Hegseth is qualified for a few things Trump wants from him. He made it clear yesterday he’ll implement unlawful orders from Trump, including to use the military to support Trump’s mass deportations or to shoot protestors. And he’ll defend those service members who implement those unlawful orders loudly and shamelessly. That’s what Trump saw Hegseth doing on Fox News. That’s why he got hired.
The how of all this — which Rebecca Traitster laid out here — matters.
Sure, Hegseth has worked on cultivating the three women Senators who might oppose him: Joni Ernst, Susan Collins, and Lisa Murkowski. In her statement announcing she will support him, Joni Ernst listed the concessions on women in the military — and that audit Hegseth has no qualifications to deliver.
After four years of weakness in the White House, Americans deserve a strong Secretary of Defense,” said Senator Joni Ernst. “Our next commander in chief selected Pete Hegseth to serve in this role, and after our conversations, hearing from Iowans, and doing my job as a United States Senator, I will support President Trump’s pick for Secretary of Defense. As I serve on the Armed Services Committee, I will work with Pete to create the most lethal fighting force and hold him to his commitments of auditing the Pentagon, ensuring opportunity for women in combat while maintaining high standards, and selecting a senior official to address and prevent sexual assault in the ranks.
After a campaign threatening unlimited donations to ouster her, Hegseth has given Ernst the cover she’ll need to take a vote that she must know is an abdication of her constitutional duty to advise and consent.
But Hegseth pointedly did not meet with any Democrat but Ranking Member Jack Reed (who excoriated his lack of qualifications in an opening statement).
When Democrats asked Hegseth about allegations of sexual misconduct or alcohol abuse, Hegseth never denied any of it; he simply said those were anonymous smears (even when Tim Kaine and Mark Kelly noted there are names attached to some of these allegations)
When Kelly asked Hegseth if he had been under oath when providing those answers, Hegseth again attacked the claims.
When Democrats asked Hegseth if such behavior would disqualify him — which should have elicited a commitment that if and when he is proven to be a drunk or a philanderer going forward, he’d have to step down — he refused to answer.
Tammy Duckworth asked a number of pointed questions (including about whether he had led an audit), including what international negotiations the Secretary of Defense conducts and whether he could name an ASEAN country (apparently Hegseth was so poorly prepared to answer Democrats’ questions, no one thought to warn him Duckworth might ask questions about Thailand, where she was born to an American service member father). Hegseth could only think of South Korea, Japan, and Australia among our allies in the region, none of which is in ASEAN.
Republicans dismissed his bumbling responses by noting that ASEAN is not a military alliance. Democrats did not note, in return, that that nevertheless betrays ignorance about the Philippines, a country at the center of our conflict with China, something that Hegseth (and every Republican on the committee) claim is a paramount concern.
With just a few exceptions, though, Democrats failed to do what they needed to do to create a video confrontation the likes of which might make an effective response to ads (above) already running in Iowa that might dissuade Republicans from supporting him or — when and if his incompetence blows up and harms the US — holds them accountable for their abdication of duty.
WSJ’s editorial board, which would love to find a way to get someone more competent, deemed Tim Kaine’s questioning about Hegseth’s lack of transparency about a sexual assault allegation documented in a police report to be the most effective.
The most effective Democratic questioning came from Virginia’s Tim Kaine, who wanted to know why Mr. Hegseth didn’t disclose to the Trump team a settlement he paid to a woman who accused him of sexual assault. Mr. Hegseth kept saying he was “falsely charged” but never answered the question.
This is right: Democrats need to focus their opposition in a way that it would incur a cost for Republicans. Painting Hegseth as a guy who kept secrets from Trump is a more effective way of hitting his transparency failures than painting the public as a victim. And when they asked about Hegseth’s more fundamental disqualifications — his unwillingness to back the Geneva Conventions, for example — Democrats failed to explain the impact of that, an invitation for others to torture American service members.
Kaine also released the most effective summary of the hearing — a screen cap showing a Republican prop complaining about lowered standards purportedly tied to diversity that misspelled military.
Republicans claim to oppose “DEI” because it lowers standards. At the same time, at a time when DOD increasingly has to rely on a second chance program that Hegseth endorsed to qualify (disproportionately male) candidates with physical, educational, or legal disqualifications, they’re rushing to install someone whose disqualifications may do real damage, even assuming America’s adversaries don’t find a way to use them to compromise the Defense Secretary.
And now, having capitulated to Trump’s demand to install someone who is so obviously unqualified to lead DOD, it’ll make it easier for Republicans to confirm Tulsi Gabbard and RFK Jr. You’ve already put the good of the country behind loyalty to Trump.
Trump and his allies bullied the Senate into backing a DEI Christian Nationalist, one who himself backs DEI for (ha!) fat men with criminal records.
The dynamic needs to be laid out clearly: When pushed, Republicans did precisely what they claim to oppose. They chose to make the US less secure because Trump demanded personal loyalty over loyalty to country.
Update: I made a picture to explain why Hegseth’s utter ignorance about ASEAN matters.
The January 6 Report Is Substantially the Immunity Brief Reporters Ignored in October
I want to say something about the structure of Jack Smith’s report. For his description of Trump’s alleged crimes, he includes a fairly high level narrative in the text, with detailed footnotes.
A great number of the footnotes — around 178 of them — cite to ECF 252.
ECF 252 is the immunity brief Jack Smith fought hard, over Trump’s objections, to submit in October. The footnotes often then cite the Special Counsel’s Bates stamp identifying that piece of evidence and include a short description of the source.
Take this footnote:
It sources this assertion in the report itself:
Under this plan, they would organize the people who would have served as Mr. Trump’s electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to sign and send to Washington false certifications claiming to be the legitimate electors. 39
It cites to the following language in the immunity brief:
So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly “dueling” slates to the state legislatures for consideration anew.
[snip]
Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.301 When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote.302
And this footnote in the immunity brief.
As advertised, the footnote links to the Appendix and (in this case) the actual fake elector certificates.
In other words, for the narrative sourced to ECF 252 (one part of the narrative not sourced to the immunity brief pertains to the riot itself), we’ve already gotten this material. We got it in October, before the election.
It got only passing coverage.
We got much of this report, in more detailed form, in October. Many of the people who claim releasing this report would have made a difference in the election didn’t read the immunity brief in October, much less make a big deal about it.
The structure is significant for a few more reasons. First, the footnotes in this report sometimes provide more description about what appears in the appendix. Second, for those (including state Attorneys General) who want the evidence from Smith’s prosecution, the place to go is Tanya Chutkan, because it’s all there in her docket, sealed.
The Jack Smith Report
Here’s the report.
Here’s the section on Insurrection — the only crime that would have disqualified Trump as President.
The Office considered, but ultimately opted against, bringing other charges. One potential charge was 18 U.S.C. § 2383, sometimes referred to as the Insurrection Act, which provides that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 18 U.S.C. § 2383. Section 2383 originated during the Civil War, as part of the Second Confiscation Act of 1862. See Act of July 17, 1862, ch. 195, § 2, Pub. L. No. 37-160, 12 Stat. 589,590.
[snip]
To establish a violation of Section 2383, the Office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an “insurrection against the authority of the United States or the laws thereof,” and then prove that Mr. Trump “incite[d]” or “assist[ed]” the insurrection, or “g[ave] aid or comfort thereto.” 18 U.S.C. § 2383
[snip]
The Office determined that there were reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court’s standard for “incitement” under Brandenburg v. Ohio, 395 U.S. 444,447 (1969) (holding that the First Amendment does not protect advocacy “directed to inciting or producing imminent lawless action and … likely to incite or produce such action”), particularly when the speech is viewed in the context of Mr. Trump’s lengthy and deceitful voter-fraud narrative that came before it. For example, the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay. But the Office did not develop direct evidence-such as an explicit admission or communication with co-conspirators-of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6. Therefore, in light of the other powerful charges available, and because the Office recognized that the Brandenburg standard is a rigorous one, see, e.g., NA.A.CF v. Claiborne Hardware Co., 458 U.S. 886, 902, 927-929 (1982) (speech delivered in “passionate atmosphere” that referenced “possibility that necks would be broken” and violators of boycott would be “disciplined” did not satisfy Brandenburg standard); Brandenburg, 395 U.S. at 446-447 (reversing conviction where Ku Klux Klan leader threatened “revengeance” for “suppression” of the white race), it concluded that pursuing an incitement to insurrection charge was unnecessary.
By comparison, the statutes that the Office did charge had been interpreted and analyzed in various contexts over many years. The Office had a solid basis for using Sections 3 71, 1512, and 241 to address the conduct presented in this case, and it concluded that introducing relatively untested legal theories surrounding Section 2383 would create unwarranted litigation risk. Importantly, the charges the Office brought fully addressed Mr. Trump’s criminal conduct, and pursuing a charge under Section 23 83 would not have added to or otherwise strengthened the Office’s evidentiary presentation at trial. For all of these reasons, the Office elected not to pursue charges under Section 2383. 193
DOJ also released the Hunter Biden report, which attempts to prove the prosecution was not political but proves the opposite.
I’ll return to both later.
Aileen Cannon Interfering with Chuck Grassley and Dick Durbin’s Constitutional Duty
I’m a bit baffled by the status of Aileen Cannon’s Calvinball to keep both volumes of the Jack Smith report buried (I thought her three day stay was up, but I must be wrong). But I fully expect she’ll find some basis to bigfoot her way into DOJ’s inherent authority again by the end of the day.
But this week, the result of her bigfooting poses new Constitutional problems. She is interfering with Chuck Grassley and Dick Durbin’s constitutional duty to advise and consent to Donald Trump’s nominees.
It’s not just me saying it. In the letter to Merrick Garland signed by aspiring Deputy Attorney General Todd Blanche and PADAG designee Emil Bove (whom WaPo says will serve as Acting DAG until Blanche is confirmed), complaining about the report, they state explicitly that release of the report would “interfere with upcoming confirmation hearings” (and, apparently, reveal damning new details about DOGE [sic] head Elon Musk’s efforts to interfere in a criminal investigation).
Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.
This is premised on Smith’s report being biased.
Except what Cannon is suppressing consists of sworn testimony from some of Trump’s closest advisors. The damning testimony I keep raising, seemingly debunking Kash Patel’s claim (cited in search warrant affidavits) that Trump had “declassified everything” he took home with him almost certainly comes from Eric Herschmann, installed in the White House by Trump’s son-in-law Jared Kushner.
This witness names at least two other people who, he claimed, would corroborate his claim that Kash’s claims were false.
Another witness described that Kash visited Trump at Mar-a-Lago before he made his claim in Breitbart.
Most importantly, Kash himself provided compelled testimony to a grand jury, represented by Stan Woodward, who not only has been named as Senior Counselor in Trump’s White House, but who (in the guise of Walt Nauta’s attorney), remains on filings fighting to suppress the release of information that could harm Kash’s bid to be FBI Director.
Do Trump’s intended DOJ leadership think Kash’s own sworn testimony is unreliable?
Did Kash renege on his public claims that Trump declassified everything?
Or did he provide testimony that conflicts with that of multiple witnesses, in which case Jack Smith might have had to explain they would have charged Kash with obstruction, too, except that he testified with immunity.
Kash’s testimony (and that of the witness who appears to be Eric Herschmann) precedes the date of Jack Smith’s appointment. It cannot be covered by Aileen Cannon’s ruling that everything that happened after that was unconstitutional.
Trump’s nominee for FBI Director gave sworn testimony in an investigation into a violation of the Espionage Act. That testimony is almost certainly covered in Volume II of the Jack Smith report. Merrick Garland has described that he would allow Chuck Grassley and Dick Durbin (along with Jim Jordan and Jamie Raskin) to review the document — which is imperative for the ranking members of SJC to perform their duty to advise and consent to Trump’s appointments.
And Aileen Cannon has, thus far, said that Grassley and Durbin can’t do their job. They can’t consider Kash Patel’s conduct in an Espionage Act investigation in their review of Kash’s suitability to be FBI Director. The ranking members of the Senate Armed Services Committee have reviewed Pete Hegseth’s FBI background check, but Grassley and Durbin have been deprived of the ability to read about Kash Patel’s role in a criminal investigation into hoarding classified documents.
Durbin may well have standing to complain about Cannon’s interference in his constitutional duties. It’s high time he considered making the cost of Cannon’s interference clear.
Update: Steve Vladeck explains how I miscounted three “days:”
Under Federal Rule of Civil Procedure 6(a)(1)(C), when a court order gives a time period in days, we “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In other words, Cannon’s injunction, if it’s not modified, will expire (clearing the way for the public release of the January 6 volume) at the end of the day, today (and not, as many assumed, yesterday).
The FISA 702 Canard at the Core of Trump Debates
By now you’ve heard about Peter Thiel’s batshit column, in which (with no explanation) he suggests Trump’s second term might bring about an apocálypsis that his first term did not, a revelation of all the secrets that, Thiel claims, “the media organisations, bureaucracies, universities and government-funded NGOs” have been keeping.
Among the secrets Thiel thinks Trump will tell in his second term that he did not in his first are:
- Who else — potentially including “Fidel Castro, 1960s mafiosi, the CIA’s Allen Dulles” — worked with Lee Harvey Oswald to kill JFK.
- How longtime Trump and Elon Musk friend Jeffrey Epstein died in a prison overseen by Bill Barr, whose family ties with Epstein go back even further.
- Whether Anthony Fauci secretly believed and covered up that, “Covid spawned from US taxpayer-funded research, or an adjacent Chinese military programme?”
- Joe Biden Administration’s hypothetical involvement in Brazil’s decision to uphold its data sovereignty, an Aussie law imposing age limits on Internet use, or the UK’s prosecution of violent rioters whom Thiel describes as guilty of no more than speech.
- Whether Charles Littlejohn’s leak of Trump’s and others’ tax records was anomalous or whether the same thing happened to Hunter Biden. (I kid. Of course he ignored that it happened to Hunter.)
- What’s behind a “50-year slowdown in scientific and technological progress in the US, the racket of crescendoing real estate prices, and the explosion of public debt” (in the same way he ignored that Hunter’s tax records had been leaked, Thiel also ignored how easy it would be to fix public debt if he and his buddies paid their fair share in taxes).
Nutty, right?
And right in the middle of these fevered conspiracy theories, intelligence contractor Peter Thiel wondered whether there’s such a thing as a right to privacy at all so long as Congress keeps reauthorizing FISA Section 702 under which the FBI continued to have violative queries incorporating US Person identifiers all the way through the Trump first term and in queries done as part of the January 6 investigation.
And on that same day, Tulsi Gabbard issued a statement reversing her opposition to Section 702, and in the process won the support of James Lankford and presumably some other hawkish Senators.
If confirmed as DNI, I will uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people. My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens. Significant FISA reforms have been enacted since my time in Congress to address these issues.
And all these Senators, reassured that Tulsi will continue America’s best spying advantage, will ignore all the other reasons she’s wildly unsuited for the position.
Thiel is not alone among those naively investing his hopes to end surveillance by ending 702. A slew of privacy activists have focused there, too.
It’s like none of these people remember that people close to Trump used Israeli surveillance contractor Black Cube to spy on Barack Obama’s Iran deal negotiators, Colin Kahl and Ben Rhodes.
It’s like none of these people remember that Trump had DHS — which has fewer protections for US persons than the FBI does and which was run by a Trump flunkie — to surveil journalists covering the Portland riots.
It’s like none of these people have thought through the implications of Trump’s baseless claim that Hizballah was somehow involved in January 6, which is that all the people already identified who participated in the riot will be searched under 702 for ties to Iran; searching for ties to foreign terrorist groups is literally the initial use case for 702.
It’s like none of these people have through through the implications of the immunity ruling, which would mean that Trump could spy on Daniel Ellsberg’s shrink or even his Democratic opponents, and John Roberts would still let him off the hook.
It’s like none of these people have yoked that reality to Trump’s chumminess with most of the most prolific sources for Section 702 — Facebook and Google, probably Amazon — providing him a way to get what he wants directly (to say nothing of whatever DMs Elon might find to be interesting), targeting the actual Americans rather than the people overseas with whom they interacted.
Craziest still, Thiel presents the concern that the government will continue to partner with companies run by Tech Bros like Peter Thiel and Elon Musk and Mark Zuckerberg and Tim Apple and Sundar Pichai to surveil the world (likely with the help of Palantir software) as some great conspiracy theory. But he doesn’t realize — or wants to pretend — that he and his Tech Bro buddies are the key villains here.
Do tell us your secrets, Peter. But first, come to grips with the fact that you are the conspiracy you’re wailing about.
Calvinball
Yesterday at 7:39PM, the 11th Circuit denied Walt Nauta and Carlos De Oliveira’s bid to enjoin the Jack Smith report. But the unsigned order did not tell Aileen Cannon to fuck off. Instead, it invited DOJ to appeal her decision.
ORDER:
Appellees’ “Emergency Motion for Injunction with Relief Requested by January 10, 2025” is DENIED.
To the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.
DAVID J. SMITH Clerk of the United States Court of Appeals for the Eleventh Circuit
ENTERED FOR THE COURT – BY DIRECTION
DOJ did appeal; their appeal hit Judge Cannon’s docket around 11:04PM.
NOTICE OF APPEAL by USA as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira Re: 682 Order. Filing fee $ 605.00. USA/FPD Filer – No Filing Fee Required.
Just after midnight, DOJ filed a notice of appeal to the existing 11th Circuit docket.
Earlier this evening, January 9, this Court denied defendants’ emergency motion to enjoin the Attorney General from publicly releasing any portion of the Final Report of the Special Counsel. The Court further indicated that, “[t]o the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.”
We write to notify the Court that the United States has tonight filed a notice of appeal from the district court’s order of January 7, 2025. See Dkt 686. As the Court knows, that order temporarily enjoined the Department of Justice, the Attorney General, the Special Counsel, and others from releasing or sharing the Special Counsel’s Final Report “outside the Department of Justice” pending this Court’s ruling on defendants’ emergency motion. Dkt. 682 at 2. The district court specified that this prohibition would “remain[] in effect until three days after” this Court’s resolution of defendants’ motion in this Court. Id
[snip]
Given the unusual exigencies of this case, as illustrated by the emergency motions practice in both the district court and this Court, the United States respectfully renews its request that this Court promptly vacate the district court’s temporary injunction.1
1 The government’s notice of appeal, filed tonight, squarely invokes this Court’s appellate jurisdiction. As soon as the new appeal is docketed in this Court, the United States intends to move to have that appeal consolidated with this one. To the extent there is any doubt concerning the Court’s authority to review the temporary injunction, furthermore, we respectfully request that the Court construe our appeal as a petition for a writ of mandamus. See Suarez-Valdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (holding that appeal can be construed as a petition for mandamus if the Court harbors doubts as to its appellate jurisdiction).
They renewed their request to tell Cannon to fuck off, and asked them to treat this as a writ of mandamus in the meantime.
Because the 11th Circuit order is unsigned, it’s really difficult to understand what whatever judges involved intend by this muddle — besides giving Nauta and De Oliveira a shot at appealing to SCOTUS on the very narrowed question before the 11th Circuit: whether they can prohibit Merrick Garland from doing anything given it will cause them no harm.
By inviting DOJ to appeal, they have squarely invoked the 11th Circuit’s appellate jurisdiction, meaning Cannon should be barred from meddling any more (not like that ever stopped her).
And if SCOTUS does nothing before 7:39PM on Sunday, then Garland can do what he says he wants: release the January 6 report and share the documents report with the Chairs and Ranking members of the Judiciary Committees.
But if DOJ files their appeal, then the 11th Circuit can weigh in on Cannon’s far more expansive demands.
There are at least hints here that DOJ is going to take steps to share the reports one way or another.
Until then, we’re waiting to learn how this game of Calvinball will turn out.
Update: Here’s DOJ’s motion to reverse Aileen Cannon.