Sorry it has taken me so long to post the appendix to Jack Smith’s immunity briefing. The four sections are here:
There’s virtually nothing new here. Trump’s temper tantrum was little more than a public wail that if people saw already-public documents about his plotting to run fake electors, it would swing the election.
That said, there are a few things we can confirm from the structure of all this, which I’ll write up over the weekend.
Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.
Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.
I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.
He also presided over the Oath Keeper cases.
That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.
As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.
Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.
That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.
But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.
Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]
Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.
As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]
Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.
But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.
Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.
For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.
At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.
The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]
As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.
I want to talk about Jared Wise.
Jared Wise is a former counterterrorism FBI Supervisory Special Agent who was arrested for crimes related to January 6 on May 1, 2023; he was indicted on civil disorder, assault, and trespassing charges on May 31, 2023.
In June, Wise moved to suppress a May 5, 2022 AT&T warrant and everything derivative of it, based on the theory that the warrant sought evidence of a conspiracy for which it had not presented probable cause (he is represented by Oregon’s very good FPD office). The same filing moved to suppress a photo obtained in an April 2023 traffic stop that occurred just weeks before a search of his residence. Finally, it aimed to suppress the search of his home based, in part, on staleness grounds. Then last month, Wise supplemented his suppression motion, this time arguing that a tower dump warrant obtained in January 2021 was an unconstitutional geofence warrant under a recent Fifth Circuit decision.
I took the time to read all this because I’ve been tracking the geofence challenges that come out of the January 6 investigation (see here, here, here, here, here, here) and also because I’m fascinated by the former law enforcement types who ended up attacking the Capitol. But between the government’s initial response and the response, submitted yesterday, to his supplement, they provide a fascinating picture of the FBI’s investigation into one of their own.
The government’s response argues this is not about a geofence at all. Rather, the warrant Wise claims was a geofence was instead a tower dump warrant targeting two towers that exclusively serve the interior of the Capitol, basically a search for business records of access to a cell phone tower rather than location data offered up in response to a voluntary Google service.
The filings together present this timeline of the investigation into Wise.
January 22, 2021 tower dump warrant
April 18, 2021 query of tower dump returns
October 2021 final conversation between Wise and tipster
January 10, 2022 public tip regarding Wise
January 26, 2022 interview in which tipster reveals Wise told him he was at the Capitol
May 5, 2022 AT&T warrant for 1752 and 5104 from November 1, 2020 through February 1, 2021: Disclosed Wise made 62 calls and sent 46 text messages on January 6
November 23, 2022 AT&T warrant for 1752 and 5104 from November 3, 2020 through January 31, 2021: Shows Wise still using phone
April 2, 2023 traffic stop on suspicion of altered VIN
April 12 and 13, 2023 warrant, issued in CAED but never executed
April 18 warrant shows Wise still using phone
April 24, 2023 warrant for Wise’s house, car, and person for 1752, 5104, 1512(c)(2), 111, 231, 371, 372: On May 1, FBI seizes:
His phone number was collected in the tower dump, but he attracted no individualized attention until someone narced him out in January 2022, at which point they found the cell phone records that he had been in the building during the 2PM hour on January 6.
At first, the FBI only obtained information to support the two trespassing charges, 1752 and 5104, used with all January 6 suspects. But the affiant of that warrant described that a search might find “help identify co-conspirators or victims,” which is why Wise claimed that this warrant was, “a fishing expedition, hoping to find some evidence of conspiracy when there is no probable cause to believe that one exists.” But, the government noted in response, at that point “the warrant authorized the seizure only of evidence related to the noted offenses.” While the second warrant, dated November 23, 2022, remained focused on the trespassing charges, it noted that,
I know that many persons who came to the Capitol on January 6, 2021, engaged in planning between the time of the November 2020 election and January 6, 2021, and that they communicated with other like-minded individuals about their purpose in coming to the Capitol using their smartphones.
Things got more interesting when — at least as described — a California Highway Patrol officer stopped Wise in April 2023, weeks before a warrant would be issued for his arrest, because the color on his registration did not match the color of the vehicle and, partly because of Wise’s Texas plates, the officer suspected VIN swapping.
The officer decided to make a traffic enforcement stop of the vehicle based on the registration return, which indicated the car’s color was blue, rather than what the officer observed to be grey. The officer knew, based on his training and experience, that there are many vehicles in the state of California that have had their Vehicle Identification Number (VIN) switched in Texas.
Wise undoubtedly believed this was a pretext stop — a stop invented solely to collect information from a suspect. As a former CT officer, he would know how they are used. And so after the officer freed him to leave, Wise got out of his car and started filming the officer.
But after he was told he was free to leave, the defendant became verbally aggressive and irritated with the officer. The defendant insisted he was stopped unlawfully and said there was another reason why the officer made the traffic stop. The officer continued to advise the defendant of the reason for the stop and told him multiple times the stop was over and that he was “free to leave.” As the officer returned to his patrol vehicle, the defendant exited his vehicle, carrying his cell phone, and appeared to be recording the officer and his vehicle. The defendant approached the officer in a slightly aggressive manner and continued to appear upset that he was stopped. The defendant requested the officer’s name and badge number, which the officer then provided. The officer again advised the defendant that the traffic stop was over and he was free to leave. After approximately two minutes, the defendant returned to his vehicle and departed.
That’s when the officer got the picture of Wise’s car, which was used in the affidavit to search Wise’s house, car, and person.
But even if the defendant’s traffic stop was improper, there was no seizure at the time the relevant photograph of the defendant was taken. Indeed, the opposite was true. The traffic stop was conducted, the defendant’s license and registration were checked and returned, and the defendant was told he was free to leave. It was over. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.”); United States v. Maynard, 615 F.3d 544, 553 (D.C. Cir. 2010) (holding that the seizure of the defendant was over after the defendant’s license and registration was returned and he was told he was free to leave), aff’d in part sub nom. United States v. Jones, 565 U.S. 400 (2012). But the defendant did not leave. Instead, after being repeatedly told he was free to leave, the defendant—who has, in other filings, opined that he is in a “unique position to admonish law enforcement,” ECF No. 33 at 32 n.8—chose to exit his vehicle, pull out his cell phone, and start recording the officer who had stopped him. It was then that the photograph subsequently used in the search warrant—seen below—was taken. In other words, the defendant voluntarily remained to reprimand a police officer, and now complains when the officer happened to document the scene using a police-issued cruiser camera.
The traffic stop’s inclusion in these suppression motions is, legally, superfluous. The government compellingly argues that they got the probable cause information to search the vehicle via other means, including surveillance of Wise and a different picture of his vehicle.
The April 2023 affidavit recites facts tying the vehicle to the defendant: it identifies the vehicle as being registered to the defendant, see Exhibit D at ¶ 2, and it cites surveillance confirming the vehicle’s presence at the defendant’s residence, see Exhibit D at ¶ 56. But the affidavit never even mentions the April 2, 2024 traffic stop. See generally Exhibit D. Instead, the pertinent photograph appears as part of an attachment identifying the vehicle to be searched. See Exhibit D at Attachment A. That attachment states “[t]he Vehicle is depicted below” and includes two photographs—only one of which is from the traffic stop.
More importantly, nothing was seized from Wise’s car; there are no fruits of a search to suppress.
On the Fourth Amendment question, this dispute appears to arise from confusion about different technologies and therefore different probable cause formulas. Some of the confusion stems from temporal lapses between the execution of a warrant and queries of data obtained from it.
But what really appears to be going on is that a very paranoid former FBI guy, one who called cops “Nazis” on January 6, believes the FBI is or was investigating him more broadly. He believed in real time and still believes (and he may be right) that when a cop stopped him during his trip to California in April 2023, it was a pretext stop designed to collect more information; there are a good number of other January 6 defendants in which such stops were used.
Ultimately, Wise came to believe “they” were out to get him, “they” were out to investigate a larger conspiracy.
In the end, they were! The search of his house included two conspiracy charges, 371 and 372, among the suspect crimes.
But instead, he’s facing two civil disorder charges for his own actions, allegedly attacking cops.
I’ve been staring at a screen all morning trying to get my mind around the way that WaPo reported that emergency response personnel in North Carolina had to relocate after threats from an armed militia … without once mentioning lies from Donald Trump or Elon Musk.
Around 1 p.m. Saturday, an official with the U.S. Forest Service, which is supporting recovery efforts after Hurricane Helene along with the Federal Emergency Management Agency, sent an urgent message to numerous federal agencies warning that “FEMA has advised all federal responders Rutherford County, NC, to stand down and evacuate the county immediately. The message stated that National Guard troops ‘had come across x2 trucks of armed militia saying there were out hunting FEMA.’”
“The IMTs [incident management teams] have been notified and are coordinating the evacuation of all assigned personnel in that county,” the email added.
Armed militias didn’t start hunting FEMA personnel in a vacuum. They did so after Trump launched a deliberate campaign of lies about FEMA to serve his own personal needs.
And yet, WaPo simply disappeared Trump’s role in deliberately creating threats so serious they’ve interrupted disaster response.
Donald Trump deliberately made disaster relief harder as part of his campaign. Donald Trump deliberately disrupted the quiet success of Springfield, OH, to serve his campaign. Donald Trump deliberately harmed Aurora, CO, to serve his campaign.
Former spooks warning about Russia
Republicans who vote to impeach him or who investigate his riot
Republicans who uphold democracy
Ruby Freeman and other election workers
No one is safe from Trump’s threats. Yet a naive belief among Trump supporters can benefit from being part of Trump’s in-group nevertheless makes precisely these threats popular.
There’s a fetish in the traditional media for asking Republicans to disavow crazy things Trump has said or done. This involves Tom Cotton so frequently I’m thinking of naming the phenomenon “Cotton swabs.” Marco Rubio and — since he became Speaker — Mike Johnson are other frequent participants in “Cotton swabbing.”
Perhaps Manu Raju confronts the person in the halls of Congress, perhaps they get invited to a Sunday show. And then the reporter asks them to be outraged about something outrageous that Trump said. Rather than disavowing it, the Republican blurts out some kind of propaganda instead.
Instead of serving as an opportunity to get Republicans to distance themselves from Trump, Republicans exploit the “Cotton swab” to perform obeisance to Trump’s fascism and air propaganda on the mainstream media.
It works every single time.
Yet journalists keep trying it, never varying their method.
Because he’s a smooth and shameless liar, JD Vance is especially adept at exploiting “Cotton swabs.”
In the past week, JD’s “Cotton swabs” have involved questions about whether JD would have certified Joe Biden’s victory. It started when NYT’s Lulu Garcia-Navarro asked JD the question five times.
Last few questions. In the debate, you were asked to clarify if you believe Trump lost the 2020 election. Do you believe he lost the 2020 election? I think that Donald Trump and I have both raised a number of issues with the 2020 election, but we’re focused on the future. I think there’s an obsession here with focusing on 2020. I’m much more worried about what happened after 2020, which is a wide-open border, groceries that are unaffordable. And look, Lulu —
Senator, yes or no. Did Donald Trump lose the 2020 election? Let me ask you a question. Is it OK that big technology companies censored the Hunter Biden laptop story, which independent analysis have said cost Donald Trump millions of votes?
Senator Vance, I’m going to ask you again. Did Donald Trump lose the 2020 election? Did big technology companies censor a story that independent studies have suggested would have cost Trump millions of votes? I think that’s the question.
Senator Vance, I’m going to ask you again. Did Donald Trump lose the 2020 election? And I’ve answered your question with another question. You answer my question and I’ll answer yours.
I have asked this question repeatedly. It is something that is very important for the American people to know. There is no proof, legal or otherwise, that Donald Trump did not lose the 2020 election. But you’re repeating a slogan rather than engaging with what I’m saying, which is that when our own technology firms engage in industrial-scale censorship — by the way, backed up by the federal government — in a way that independent studies suggest affect the votes. I’m worried about Americans who feel like there were problems in 2020. I’m not worried about this slogan that people throw: Well, every court case went this way. I’m talking about something very discrete, a problem of censorship in this country that I do think affected things in 2020. And more importantly, that led to Kamala Harris’s governance, which has screwed this country up in a big way.
Senator, would you have certified the election in 2020? Yes or no? I’ve said that I would have voted against certification because of the concern that I just raised. I think that when you have technology companies —
The answer is no. When you have technology companies censoring Americans at a mass scale in a way that, again, independent studies have suggested affect the vote. I think that it’s right to protest against that, to criticize that, and that’s a totally reasonable thing.
Two other journalists imagined they could do better. After letting JD claim that Trump’s lies about Aurora have some truth to them and insisting that he knows better about disparate assistance in North Carolina, for example, Martha Raddatz again gave JD a chance to claim that the two-day delay of letting people see Hunter Biden’s dick pics swung the 2020 election, and utterly predictably, he took the opportunity to falsely claim that “big tech” had “censored” Hunter Biden’s dick pics and that that was cause enough to declare the 2020 election invalid.
RADDATZ: Senator, we’re just about out of time here. We’re just about out of time here. And I want to end with this — in interview after interview, question after question, and in the debate, you refused to say that Donald Trump lost the 2020 election.
So I’m just going to assume that if I ask you 50 times whether he lost the election, you would not acknowledge that he did. Is that correct?
VANCE: Martha, you’ve — you asked this question, I’ve been asked this question 10 times in the past couple of weeks. Of course, Donald Trump and I believe there were problems in 2020. You haven’t asked about inflation, the —
(CROSSTALK)
RADDATZ: No, I’m sorry, let’s stick to this. I know — I know —
VANCE: The American people want us to talk about how to make their lives better. They don’t want us to —
RADDATZ: Why won’t you say that? Why won’t you say that?
VANCE: Because — because, Martha, I believe that in 2020, when big tech firms were censoring American citizens, that created very serious problems. And by the way, Martha, you’re — you’re a journalist. You represent the American media.
Look at the polling on this. A lot of Americans feel like they were silenced in the run-up to the 2020 election. That is such a bigger issue. That fundamental problem —
(CROSSTALK)
RADDATZ: If you — I just want to —
VANCE: — that me and Donald Trump talking about it, and unfortunately, Martha —
RADDATZ: But I don’t understand why you want to say that you believe it?
(CROSSTALK)
VANCE: She’s — well, won’t just say what, that I think the 2020 election had some problems? I’ve said that repeatedly.
RADDATZ: Did Donald Trump lose? That’s the question, and you know that’s the question.
VANCE: Martha, I’ve said repeatedly I think the election had problems. You want to say rigged. You want to say he won. Use whatever vocabulary term you want — I want to focus on the fact that we had big technology firms censoring our fellow citizens in a way that violated our fundamental rights.
Thankfully, Phil Bump laid out the absurdity behind JD’s answer so I don’t have to. What JD claims was a question about censorship was, in fact, a question about whether, if the hard drive that right wingers claim is a laptop yielded information about China that Congress never managed to find in two years of trying, would it have changed their vote.
It is not the case that tech companies censoring a story — specifically, a New York Post story about an email attributed to a laptop owned by Joe Biden’s son Hunter — cost Trump the election.
This, too, has been explored at length in the past, but it should immediately fail the smell test anyway. The 2020 election was a referendum on Trump, on his presidency and particularly on his handling of the coronavirus pandemic. It is ridiculous to suggest that this would have changed had Twitter (as it was then known) not briefly limited the sharing of a New York Post story about how one of Hunter Biden’s business partners sent him an email thanking him for getting him in the room with his father.
The “independent studies” which Vance mentioned presumably refer to one poll conducted on behalf of the right-wing Media Research Center after the election. It presented respondents with a sweeping claim linking Biden to foreign business interests, asking whether awareness of that purported link would have led people to reconsider their votes. A chunk of self-reported Biden voters said they would have.
Setting aside the vast inaccuracies inherent in having people assess what they would have done had the conditions of their decision-making been slightly different, the question didn’t even center on the New York Post story! It was about purported Chinese investors and used the same “Biden family” framing on which the failed Republican impeachment probe depended.
Even ignoring all the other false premises — that the hard drive he claims was a laptop was “censored,” that the right wing poll is accurate — not even the laptop itself, in federal hands, has substantiated illegal conduct beyond a known crack addiction and a gun purchase.
I would add that, in his answer to NYT, JD justifies a claim about what he would have done in 2021 with a partisan poll not taken until two years later. His answer is based on false premiise after false premise and a time machine.
But, as Bump also lays out, this answer is especially ridiculous given the confirmation that Trump’s campaign has done what JD falsely insinuates the Biden campaign did in 2020: Ask a tech company (probably all tech companies) to censor data.
As Ken Klippenstein described when declaring victory, Elon Musk personally made the decision to reverse his permanent suspension when NYT exposed the Trump campaign’s involvement.
Late last night, X (née Twitter) reinstated my account after banning me on September 26 for publishing the J.D. Vance dossier. Elon Musk personally intervened, in the name of “free speech principles,” according to correspondence I’ve seen. Musk had previously declared me “evil” before X suspended me in a move we now know was coordinated with the Trump campaign.
“I’ve asked X Safety to unsuspend him, even though I think he is an awful human being,” Musk told political commentator Brian Krassenstein (and frequent doppelgänger of mine) on October 11. “Important to stay true to free speech principles.”
The reinstatement of my account later that day reversed what X had previously informed me was a “permanent” suspension. The only explanation I’ve received from X came in an email from Twitter Support last night. The email reiterated my alleged violation of X’s policy on posting private information, but also said that the incident may have been a mistake on my part, for which reason I was being un-suspended.
Note, Klippenstein’s account is back. The links to the JD dossier are not. Xitter is still doing what Elon Musk claims is an affront to free speech, suppressing true information.
It is a testament to the voluntary impotence of the press that they don’t make JD pay a price for these ridiculous claims.
After all, if he believes his premise — that the throttling of content based on stolen information is such a severe abuse that it makes the entire election illegitimate — then he has already conceded that he and Trump cannot score a legitimate victory. If it is the case that “big tech” “censorship” can delegitimize an entire election — even ignoring that Trump’s campaign made demands and Biden’s campaign only asked for non-consensual dick pics to be taken down — then he has conceded all legitimacy.
To be sure, I’m not saying this. I think Vance and Trump might still win this, fair and square.
But Vance, based on his comments, has already stated that if Trump wins, Trump’s victory will be illegitimate based on his success at censoring the JD Vance dossier.
When I saw the news that Trump is planning a rally at Madison Square Garden — as the Nazis did in 1939 — I checked the date to see whether that was before or after Steve Bannon gets out of prison.
Bannon is due to get out on October 29; the rally is two days earlier, on October 27. On the current schedule, Bannon will be released nine days before the election, but not soon enough to attend what will undoubtedly be a larger version of the Nazi rant that Trump put on in Aurora the other day. Unless something disrupts it, Bannon will start trial for defrauding Trump supporters on December 9, days before the states certify the electoral vote.
This is the kind of timing I can’t get out of my head. According to FiveThirtyEight, Kamala Harris currently has a 53% chance of winning the electoral college. That’s bleak enough. But based on everything I know about January 6, I’d say that if Trump loses, there’s at least a 10% chance Trump’s fuckery in response will have a major impact on the transfer of power.
Experts on right wing extremism are suggesting the same thing. Here’s an interview Rick Perlstein did with David Neiwert back in August on the political violence he expects. Here’s a report from someone who infiltrated the 3 Percenters, predicting they would engage in vigilanteism.
As I wrote in this post, I suspect that Jack Smith considered, but did not, add charges when he decided to supersede Trump’s January 6 indictment. As I wrote, there is negative space in Smith’s immunity filing where charges on Trump’s funding for January 6 (and subsequent suspected misuse of those funds) might otherwise be.
More tellingly, there are four things that indicate Jack Smith envisioned — but did not yet include — charges relating to ginning up violence. As Smith did in a 404(b) filing submitted in December, he treated Mike Roman as a co-conspirator when he exhorted a colleague, “Make them riot” and “Do it!!!” Newly in the immunity filing, he treated Bannon as a co-conspirator, providing a way to introduce Steve Bannon’s prediction, “All Hell is going to break loose tomorrow!” shortly after speaking with Trump on January 5. But Smith didn’t revise the indictment to describe Roman and Bannon as CC7 and CC8; that is, he did not formally include these efforts to gin up violence in this indictment. What appears to be the same source for the Mike Roman detail (which could be Roman’s phone, which was seized in September 2022; in several cases it has taken a year to exploit phones seized in the January 6 investigation) also described that Trump adopted the same tactic in Philadelphia.
The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22
Even more notably, after saying (in that same December 404(b) filing) that he wanted to include Trump’s endorsement and later ratification of the Proud Boys’ attack on the country to “demonstrate[] the defendant’s encouragement of violence,” Smith didn’t include them in the immunity filing whatsoever — not even in the section where the immunity filing described Trump’s endorsement of men who assaulted cops. If I’m right that Smith held stuff back because SCOTUS delayed his work so long it butted into the election season, it would mean he believes he has the ability to prove that Trump deliberately stoked violence targeting efforts to count the vote at both the state and federal level, but could not lay that out until after November 5, after which Trump may be in a position to dismiss the case entirely.
And the two Stephens — Bannon, whose War Room podcast would serve to show that Trump intended to loose all Hell on January 6, and Miller, who added the finishing touches to Trump’s speech making Mike Pence a target for that violence — appear to have a plan to do just that, working in concert with Elon Musk.
As I laid out in June, just as Bannon was reporting to prison, both Stephens were arguing that they had a right to make false claims that had the effect of fostering violence.
Bannon filed an emergency appeal aiming to stay out of prison arguing he had to remain out so he could “speak[] on important issues.”
There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.
No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.
That claim came just after he had given a “Victory or Death” speech at a Turning Point conference.
In the same period, Stephen Miller attempted to intervene in Jack Smith’s efforts to prevent Trump from making false claims that the FBI tried to assassinate him when they did a search of his home governed by a standard use-of-force policy, knowing full well he was gone. (Aileen Cannon rejected Miller’s effort before she dismissed the case entirely.)
Miller argued that the type of speech that Smith wanted to limit — false claims that have already inspired a violent attack on the FBI — as speech central to Trump’s campaign for President.
The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.
Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.
Miller called Trump’s false attack on the FBI peaceful political discourse.
Importantly, Miller dodged an argument Smith made — that Trump intended that his false claims would go viral. He intended for people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignored the exhibit showing Bannon parroting Trump’s false claim on his War Room podcast.
It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.
Note, Bannon did this with Mike Davis, a leading candidate for a senior DOJ position under Trump, possibly even Attorney General, who has vowed to instill a reign of terror in that position.
But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.
Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.
Back in June, Bannon said he had to remain out of prison because he played a key role in Trump’s campaign. And Miller said that even if Bannon deliberately parroted Trump’s false incendiary claims, that was protected political speech as part of Trump’s campaign.
But this effort has been going on for years.
A report that American Sunlight released this week describing how systematically the right wing turned to dismantling the moderation processes set up in the wake of the 2016 election points to Miller’s America First Legal’s role in spinning moderation by private actors as censorship. Miller started fundraising for his effort in 2021.
[F]ormer Trump Senior Advisor Stephen Miller[] founded America First Legal (AFL). 6 An unflinchingly partisan organization, the home page of AFL’s website claims its mission is to “[fight] back against lawless executive actions and the Radical Left,” 7 which it accomplishes through litigation. AFL has, to date, engaged in dozens of efforts to silence disinformation research through frivolous lawsuits and collaboration with Jordan and the House Judiciary Committee’s harassment of researchers. In a digital age where social media is more prevalent than ever and social media platforms have more power than ever, AFL’s efforts to politicize legitimate efforts to combat disinformation – by social media platforms and independent private-citizen researchers – have significantly damaged the information environment. To fully realize these efforts and their impacts, we explore the founding and operations of AFL.
[snip]
After its launch in early 2022, AFL began its line of litigation with a series of FOIA requests relating to the State Department’s Global Engagement Center (GEC) and the Cybersecurity and Infrastructure Security Agency (CISA). These requests marked a noticeable uptick in conservative claims about censorship. AFL’s FOIA requests alleged these government agencies improperly partnered with social media platforms and asked for content around Hunter Biden’s laptop to be removed. 22 In its FOIA request to CISA, AFL writes 23 :
On March 17, 2022, the New York Times revealed that “[Hunter] Biden’s laptop was indeed authentic, more than a year after … much of the media dismissed the New York Post’s reporting as Russian disinformation.” When the story was first accused of being disinformation, X/Twitter suspended the New York Post’s account for seven days, and Facebook “’reduc[ed]’ the story’s distribution on its platform while waiting for third-party fact checkers to verify it.” This was just one of many instances where social media companies censored politically controversial information under the pretext of combatting MDM even when the information later became verified.
Then, as now, AFL offered no evidence to support its claim that any federal agency coerced, pressured, or mandated that social media platforms remove any such laptop-related content. As this report will cover in depth, social media platforms have their own, robust content moderation policies in regards to false and misleading content; as private companies, they implement these policies as they see fit.
The American Sunlight report describes how some of the key donations to AFL were laundered so as to hide the original donors (and other of its donations came from entities that had received the funds Trump raised in advance of January 6).
But as WSJ recently reported, Musk started dumping tens of millions into Miller’s racist and transphobic ads no later than June 2022.
In the fall of 2022, more than $50 million of Musk’s money funded a series of advertising campaigns by a group called Citizens for Sanity, according to people familiar with his involvement and tax filings for the group. The bulk of the ads ran in battleground states days before the midterm elections and attacked Democrats on controversial issues such as medical care for transgender children and illegal immigration.
Citizens for Sanity was incorporated in Delaware in June 2022, with salaried employees from Miller’s nonprofit legal group listed as its directors and officers.
There are questions of whether Miller grew close to Musk even before that.
In the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller — texted Musk personally to raise the sensitivities of restoring Trump, whom the person called, “the boss,” to Xitter.
And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.
“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.
Whoever this was — and people were guessing it was Miller in real time — someone close enough to Elon to influence his purchase of Xitter was thinking of the purchase in terms of bringing back “right wingers,” including Trump.
Yesterday, the NYT reported on how the far right accounts that Musk brought back from bannings have enjoyed expanded reach since being reinstated. Some of the most popular accounts have laid the groundwork for attacking the election.
As the election nears, some of the high-profile reinstated accounts have begun to pre-emptively cast doubt on the results. Much of the commentary is reminiscent of the conspiracy theories that swirled after the 2020 election and in the lead-up to the Jan. 6 riot.
Since being welcomed back to the platform, roughly 80 percent of the accounts have discussed the idea of stolen elections, with most making some variation of the claim that Democrats were engaged in questionable voting schemes. Across at least 1,800 posts on the subject, the users drew more than 13 million likes, shares and other reactions.
Some prominent accounts shared a misleading video linked to the Heritage Foundation, a conservative think tank, that used shaky evidence to claim widespread voter registration of noncitizens. One of the posts received more than 750,000 views; Mr. Musk later circulated the video himself.
But it’s more than just disinformation. Xitter has played a key role in stoking anti-migrant violence across the world. In Ireland, for example, Alex Jones’ magnification of Tommy Robinson’s tweets helped stoke an attack on a shelter for migrants.
As with mentions of Newtownmountkennedy, users outside of Ireland authored the most posts on X mentioning this hashtag, according to the data obtained by Sky News. 57% were posted by accounts based in the United States, 24.7% by Irish users. A further 8.8% were attributed to users based in the United Kingdom.
While four of the top five accounts attracting the most engagement on posts mentioning this hashtag were based in Ireland, the fifth belongs to Alex Jones, an American media personality and conspiracy theorist. Jones’s posts using this hashtag were engaged with 10,700 times.
Jones continued to platform Robinson as he stoked riots in the UK.
Several high-profile characters known for their far-right views have provided vocal commentary on social media in recent days and have been condemned by the government for aggravating tensions via their posts.
Stephen Yaxley-Lennon, who operates under the alias Tommy Robinson, has long been one of Britain’s most foremost far-right and anti-Muslim activists and founded the now-defunct English Defence League (EDL) in 2009.
According to the Daily Mail, Robinson is currently in a hotel in Cyprus, from where he has been posting a flurry of videos to social media. Each post has been viewed hundreds of thousands of times, and shared by right-wing figures across the world including United States InfoWars founder Alex Jones.
And Elon Musk himself famously helped stoke the violence, not just declaring civil war to be “inevitable,” but also adopting Nigel Farage’s attacks on Keir Starmer.
On Monday, a spokesperson for UK Prime Minister Keir Starmer addressed Musk’s comment, telling reporters “there’s no justification for that.”
But Musk is digging his heels in. On Tuesday, he labeled Starmer #TwoTierKier in an apparent reference to a debunked claim spread by conspiracy theorists and populist politicians such as Nigel Farage that “two-tier policing” means right-wing protests are dealt with more forcefully than those organized by the left. He also likened Britain to the Soviet Union for attempting to restrict offensive speech on social media.
In the UK, such incitement is illegal. But it is virtually impossible to prosecute in the United States. So if Elon ever deliberately stoked political violence in the US, it would be extremely difficult to stop him, even ignoring the years of propaganda about censorship and the critical role some of Musk’s companies play in US national security.
The ties to Nigel Farage go further than Xitter networks.
In a pre-prison interview with David Brooks (in which Brooks didn’t mention how Bannon stands accused of defrauding Trump’s supporters in his New York case), Bannon bragged about turning international fascists into rocks stars.
STEVE BANNON: Well, I think it’s very simple: that the ruling elites of the West lost confidence in themselves. The elites have lost their faith in their countries. They’ve lost faith in the Westphalian system, the nation-state. They are more and more detached from the lived experience of their people.
On our show “War Room,” I probably spend at least 20 percent of our time talking about international elements in our movement. So we’ve made Nigel a rock star, Giorgia Meloni a rock star. Marine Le Pen is a rock star. Geert is a rock star. We talk about these people all the time.
And in August, Bannon’s top aide, Alexandra Preate, registered as a foreign agent for Nigel Farage. She cited arranging his participation in:
That is, Preate retroactively registered as Farage’s agent after a period (July to August) when he was spreading false claims that stoked riots in his own country.
Preate also updated her registration for the authoritarian Salvadoran President, Nayib Bukele (which makes you wonder whether she had a role in this fawning profile of Bukele).
Before Trump’s speech in Aurora, CO the other day — at which he spoke of using the Alien and Sedition Act against what he deemed to be migrants — Stephen Miller served as his opening act, using the mug shots of three undocumented immigrants who have committed violent crimes against American women to rile up the crowd, part of a years-long campaign to falsely suggest that migrants are even as corrupt as violent as white supremacists.
Stephen Miller started laying the infrastructure to improve on January 6 from shortly after the failed coup attempt (and he did so, according to the American Sunlight report, with funds that Trump may have raised with his Big Lie). In recent weeks, Trump — with Miller’s help — has undermined the success of towns in Ohio and Colorado with racial division and has led his own supporters hard hit by hurricanes to forgo aid to which they’re entitled with false claims that Democrats are withholding that aid.
By targeting people like North Carolina Governor Roy Cooper and Kamala Harris, Trump is targeting not just Democrats, but also people who play a key role in certifying the election.
If Cooper and Harris were incapacitated before they played their role in certifying the election, they would be replaced by Mark Robinson and whatever president pro tempore a Senate that is expected to have a GOP majority after January 4 chooses, if such a choice could be negotiated in a close Senate in a few days.
And all the while, the richest man in the world, who claims that he, like Steve Bannon and Donald Trump, might face prison if Vice President Harris wins the election, keeps joking about assassination attempts targeting Harris.
We have just over three weeks to try to affect the outcome on November 5 — to try to make it clear that Trump will do for America what he has done in Springfield, Aurora, and Western North Carolina, deliberately made things worse for his own personal benefit. But at the same time, we need to be aware of how those efforts to make things worse are about creating a problem that Trump can demand emergency powers to solve.
As journalists who focus on social media-enabled disinformation grow overwhelmed by the extent to which broad swathes of Americans have become detached from reality…
The truth is, it’s getting harder to describe the extent to which a meaningful percentage of Americans have dissociated from reality. As Hurricane Milton churned across the Gulf of Mexico last night, I saw an onslaught of outright conspiracy theorizing and utter nonsense racking up millions of views across the internet. The posts would be laughable if they weren’t taken by many people as gospel. Among them: Infowars’ Alex Jones, who claimed that Hurricanes Milton and Helene were “weather weapons” unleashed on the East Coast by the U.S. government, and “truth seeker” accounts on X that posted photos of condensation trails in the sky to baselessly allege that the government was “spraying Florida ahead of Hurricane Milton” in order to ensure maximum rainfall, “just like they did over Asheville!”
As Milton made landfall, causing a series of tornados, a verified account on X reposted a TikTok video of a massive funnel cloud with the caption “WHAT IS HAPPENING TO FLORIDA?!” The clip, which was eventually removed but had been viewed 662,000 times as of yesterday evening, turned out to be from a video of a CGI tornado that was originally published months ago. Scrolling through these platforms, watching them fill with false information, harebrained theories, and doctored images—all while panicked residents boarded up their houses, struggled to evacuate, and prayed that their worldly possessions wouldn’t be obliterated overnight—offered a portrait of American discourse almost too bleak to reckon with head-on.
… NYT decided to do a puff piece on Elon Musk’s support for Trump.
Done as anything else than a corruption (which the piece largely ignores) or GOTV story, such a piece is in exceedingly bad taste.
All the more so given the way the NYT buries some of the most scandalous parts of the story.
In paragraph 23, for example, NYT cites two sources confirming that the Trump campaign intervened to get Xitter to take down links to the JD Vance dossier that Ken Klippenstein posted; it neither explains what was in the dossier nor names Klippenstein (indeed, aside from a photo caption, the article as a whole ignores JD Vance’s role in the Musk-Trump bromance).
The relationship has proved significant in other ways. After a reporter’s publication of hacked Trump campaign information last month, the campaign connected with X to prevent the circulation of links to the material on the platform, according to two people with knowledge of the events. X eventually blocked links to the material and suspended the reporter’s account.
Donald Trump and top Republicans have spent years complaining that Twitter throttled, for two days, a NY Post story on the hard drive of Hunter Biden’s personal data that Trump’s personal attorney was disseminating. Elon Musk allowed propagandists to sort through Xitter’s internal discussions, and when Matty Taibbi misrepresented a reference to the takedown of dick pics, some of which Guo Wengui had altered, Musk outraged, “If this isn’t a violation of the Constitution’s First Amendment, what is?”
Congress has held hearings! Trump still whines about the throttling of the NY Post story in his campaign rallies. That’s the excuse he uses for dodging the 60 Minutes interview.
This has been a central theme of right wing grievance for years. The Hunter Biden “laptop” is the founding myth in a far right reconceptualization of “free speech.” And when NYT catches Trump and Musk doing what they complain about, NYT buried that in paragraph 23.
More dangerous still is the way NYT misrepresents Elon Musk’s dangerous disinformation.
In the very last section of the 2,200 word story, starting around paragraph 33, NYT purports to describe Musk’s “misinformation,” suggesting he’s dumb, not deliberate.
If America PAC is the most ambitious and costly manifestation of Mr. Musk’s support for Mr. Trump, nowhere has his cheerleading been more evident than on X.
Since publicly endorsing the former president in July, he has posted at least 109 times about Mr. Trump and the election. And while he has said in the past that the platform should be “politically neutral,” he has used it to advance election misinformation and the baseless claim that Democrats are engaging in “deliberate voter importation” and “fast-tracking” immigrants to citizenship to gain control over the electorate.
One post with that claim this month has garnered nearly 34 million views, according to X’s own metrics, underscoring the scale of attention that Mr. Musk, owner of the platform’s most followed account, can command.
“Unless Trump wins and we get rid of the mountain of smothering regulations (that have nothing to do with safety!), humanity will never reach Mars,” Mr. Musk wrote this month in a post that has gained nearly 18 million views. “This is existential.”
Online, Mr. Musk has painted a dark picture of what would happen if Mr. Trump lost, a circumstance that could hurt Mr. Musk personally. In an interview with the former Fox News host Tucker Carlson, he acknowledged “trashing Kamala nonstop” and being all in for Mr. Trump.
If Mr. Trump loses, he joked, “how long do you think my prison sentence is going to be?”
This passage ignores Musk’s most important disinformation — things like his misrepresentation of hurricane response and his magnification of the most dehumanizing propaganda about migrants (including Haitians in Springfield, OH). NYT stupidly parroted Trump’s claim that they would replace normal turnout by sowing disinformation about this stuff, yet now they soft pedal how Musk is doing things that might get people killed.
Crazier still, NYT chooses not to mention Musk’s personal role in stoking far right anti-migrant violence in the UK, including his Tweet asserting that Civil War is inevitable. (NYT also doesn’t mention Musk’s attempt — with a legal fight all the way to the Supreme Court — to thwart Jack Smith’s investigation into Trump and his intransigence in the face of Brazilian legal requests as part of its response to a coup attempt.)
Musk has become a transnational vector for far right political violence.
NYT doesn’t mention that.
And finally, most insane of all, NYT doesn’t mention that Elon Musk has, more than once, joked about assassination and Kamala Harris.
After the Secret Service reached out to him the first time, Musk repeated the claim in the last week, joking with Tucker Carlson.
NYT calls this — repeated “jokes” about assassinating Kamala Harris — “insult[ing the Democratic Party’s] candidate, Vice President Kamala Harris.”
Elon Musk isn’t helping Trump get elected, NYT’s excuse for posting this puff piece. He’s helping Trump stoke fascism.
And rather than explaining the risk, NYT simply buries it.
Today was the deadline Judge Chutkan set for Trump to object to any of the specific redactions Jack Smith had proposed in the appendix to his motion on immunity.
MINUTE ORDER as to DONALD J. TRUMP: The Clerk of the Court is directed to file on the public docket the Government’s “Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket,” ECF No. 245. It is hereby ORDERED that Defendant shall file under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations by 12:00 PM on October 1, 2024, and shall file under seal any objections to the proposed redactions in the Appendix to that Motion by 5:00 PM on October 10, 2024. Signed by Judge Tanya S. Chutkan on 9/27/2024. (zcll)
Rather than object, Trump filed another whining complaint about the election. Predictably, he cited the ill-informed rants of Elie Honig and Jack Goldsmith.
There should be no further disclosures at this time of the so-called “evidence” that the Special Counsel’s Office has unlawfully cherry-picked and mischaracterized—during early voting in the 2024 Presidential election—in connection with an improper Presidential immunity filing that has no basis in criminal procedure or judicial precedent. President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Given that she again got no specific objections to the redactions Jack Smith opposed, Judge Chutkan approved the posting of the appendix (which must be about 1500 pages).
Defendant has now filed an opposition objecting to unsealing any part of the Appendix. ECF No. 259. As in his previous filing, he identifies no specific substantive objections to particular proposed redactions. Instead, Defendant “maintains his objections” to any “further disclosures at this time” for the same reasons he opposed unsealing the Motion, and he requests that “[i]f the Court decides to release additional information relating to the Office’s filing, in the Appendix or otherwise, . . . that the Court stay that determination for a reasonable period of time so that [he] can evaluate litigation options relating to the decision.” Id. at 1–2. For the same reasons set forth in its decision with respect to the Motion, ECF No. 251, the court determines that the Government’s proposed redactions to the Appendix are appropriate, and that Defendant’s blanket objections to further unsealing are without merit. As the court has stated previously, “Defendant’s concern with the political consequences of these proceedings” is not a cognizable legal prejudice. Id. at 4–5.
Accordingly, the Government’s Motion for Leave to File to Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket, ECF No. 246, is GRANTED with respect to the Government’s proposed redacted version of the Appendix to the Government’s Motion for Immunity Determinations.
But she gave Trump a week to — as he described — “evaluate litigation options.”
The court will grant Defendant’s request for a stay so that he can “evaluate litigation options,” ECF No. 259 at 2, and hereby STAYS this decision for seven days.
I await the opinion of smart lawyers. But Judge Chutkan seems to be engaged in a bit of judicial rope-a-dope. The most obvious legal option Trump has is an Emergency Temporary Restraining Order against posting the appendix, but he has just foregone two opportunities to make specific objections. He would face an even bigger problem if he tried to get a writ of mandamus against Judge Chutkan, partly because he did have alternative recourse (specific objections) and partly because she’s literally doing what SCOTUS told her to do.
We shall see. For the moment, though, Trump seems poised to draw more attention to what was largely a restatement of what we already knew.
Harry Litman was kind enough to invite me onto Talking Feds yesterday to go over Jack Smith’s immunity document.
After I wrote this post laying out that Elie Honig was not only wrong about Jack Smith’s immunity briefing, but that it was very likely DOJ had decided not to take certain steps in August because of the election, I thought about sending the post to Jack Goldsmith, because he tends to make claims about Jack Smith violating DOJ guidelines with little understanding of the facts.
Whereas Honig dedicated just one paragraph to asserting that the problem here lay in “new” disclosures,
The immediate takeaway lies in the revelations contained in Smith’s oversize brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice-President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.
Goldsmith repeated his claim that there were “new” disclosures in Jack Smith’s immunity filing four times, starting in the lead paragraph.
Last week a judge unsealed a 165-page legal brief with damaging new revelations about President Donald Trump’s efforts to overturn the 2020 presidential election.
[snip]
The brief he filed last week sought to show that the election prosecution can continue despite the Supreme Court’s immunity ruling. It laid out the government’s case against Mr. Trump with what many media reports described as “bombshell” new details about his wrongdoing. The filing is in clear tension with the Justice Department’s 60-day rule, which the department inspector general has described as a “longstanding department practice of delaying overt investigative steps or disclosures that could impact an election” within 60 days of an election. However, the “rule” is unwritten and, as the inspector general made clear, has an uncertain scope.
[snip]
Perhaps the department thinks the new disclosures are marginal and won’t affect the election, or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.
[snip]
Because it didn’t need to disclose the new details now, and because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy.
New new new new.
Bombshell!
I’ll note, I was not among the allegedly “many media reports” that declared I had found “‘bombshell’ new details.” Nor was Brandi Buchman, in her new gig at HuffPo. Nor were Politico’s Kyle Cheney and Josh Gerstein. While a subhed of the WaPo story on the brief promised “new” details, the story itself describes that we knew most of this before.
Much of the evidence against Trump in the case had already become public, either through previous filings, news reports or an extensive congressional investigation into the events of Jan. 6.
Tellingly, while NYT devoted a section of their four takeaways piece to “new” evidence, they specifically said none of this was “game-changing.”
The prosecutor revealed new evidence.
The brief contained far more detail than the indictment and included many specific allegations that were not previously part of the public record of the events leading up to the attack on the Capitol by a mob of Trump supporters on Jan. 6, 2021.
None of the new details were game-changing revelations, but they add further texture to the available history. For example, part of the brief focuses on a social media post that Mr. Trump sent on the afternoon of the attack on the Capitol, telling supporters that Vice President Mike Pence had let them all down.
Mr. Trump was sitting alone in the dining room off the Oval Office at the time. According to the brief, forensic data shows he was using the Twitter app on his phone and watching Fox News. Fox had just interviewed a man who was frustrated that Mr. Pence was not blocking the certification and then reported that a police officer may have been injured and the protesters had breached the Capitol.
Mr. Trump posted to Twitter that Mr. Pence had lacked the “courage” to do what was right. The mob became enraged at the vice president, and the Secret Service took him to a secure location. An aide to Mr. Trump rushed in to alert him to the peril Mr. Pence was in, but Mr. Trump looked at the aide and said only, “So what?” according to the brief. [my emphasis]
And much of this isn’t new.
We learned prosecutors were going to rely on forensic data from an expert notice submitted in December. The original indictment revealed that Trump was alone in his dining room when he sent the Tweet targeting Mike Pence. The superseding indictment added to the existing description in the original indictment that Trump was “watch[ing] events unfold” that his TV was showing “live coverage.” If you couldn’t already guess that meant he was watching Fox News, the January 6 Committee told us that in hearings and their final report. The actual content shown on Fox News at that moment is new to court filings, but it is publicly available. The Tweet itself, of course, has been discussed in detail starting from Trump’s impeachment. The Nick Luna comment, “So what?”, is new, but simply a better sourced version of Cassidy Hutchinson’s far more damning hearsay testimony of Mark Meadows telling Pat Cipollone that Trump thought Pence “deserves it” even as his supporters chanted “hang Mike Pence.”
The CNN piece that Honig linked to substantiate his claim this was new described that the filing provided “fullest picture yet of [Jack Smith’s] 2020 election case,” not that these were bombshells. It described “new” details to include:
Trump’s frayed relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol; and conversations with family members and others where the then-president was fighting his loss to Joe Biden.
Those details of Trump’s phone usage — as I noted above — were actually covered in earlier filings and even the indictments. The one new attribution to a conversation with Trump’s family members — the “fight like hell” claim — is important mostly because it echoed the very public exhortation in the January 6 speech we all saw four years ago. And virtually all the references in the brief about Trump’s frayed relationship with Pence are parallel sourced to Mike Pence’s book, published years ago.
What Goldsmith cites instead of the NYT, where his op-ed was published (which, many people complained, didn’t play up the brief enough), was this ABC story. It promises stuff that is new, but then lists a bunch of stuff we knew already.
Special counsel Jack Smith has outlined new details of former President Donald Trump and his allies’ sweeping and “increasingly desperate” efforts to overturn his 2020 election loss, in a blockbuster court filing Wednesday aimed at defending Smith’s prosecution of Trump following the Supreme Court’s July immunity ruling.
Trump intentionally lied to the public, state election officials, and his own vice president in an effort to cling to power after losing the election, while privately describing some of the claims of election fraud as “crazy,” prosecutors alleged in the 165-page filing.
And it doesn’t substantiate its claims that this stuff is new.
For example, the immunity filing explains how prosecutors know that Trump called Sidney Powell “crazy:” after Tucker Carlson ripped her to shreds, Trump let Dan Scavino and P7 — who may be Hope Hicks — listen to a conversation with Powell on speakerphone while he mocked her. That he called her crazy was included in the original indictment’s description of Powell.
One other thing some blow-ins to this story claimed was new — Mike Roman’s instruction to “Make them riot” — was also something already revealed in a December filing.
What Honig and Goldsmith are all worked up about is not new news, but editors who, trying to hype stories about this filing, felt the need to oversell the amount of new news in it.
Their concern arises out of click-bait, not the substance of the immunity filing itself.
And from that, Goldsmith scolds that Smith should have justified filing this brief in response to an order from Judge Chutkan.
[T]he department has not publicly justified its actions in the election prosecution, and its failure to do so in this highest-of-stakes context is a mistake.
Only, even Goldsmith’s claim that the department didn’t justify its actions is not entirely accurate.
Jack Smith hasn’t told us what internal DOJ deliberations were. But he did publicly reveal that before he did anything in the wake of the SCOTUS remand, he spent most of a month “consult[ing] with other Department of Justice components” regarding DOJ “rules, regulations … and policies” about “the most appropriate schedule” moving forward.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.
DOJ is never going to reveal these deliberations (and Jack Goldsmith knows that better than most, given the number of far more important internal deliberations involving Goldsmith himself, dating to two decades ago, that we’ve never been allowed to and won’t ever be allowed to see).
But they did tell us they engaged in them. Jack Smith literally told us that he was spending weeks consulting about how to comply with DOJ policies regarding timing even before he superseded the indictment.
Only that detail — the one that they keep harping about — appears to be news to Honig and Goldsmith.
So chalk this up to yet another instance where the people complaining about what Jack Smith did, instead, only reveal they don’t know what Jack Smith did.
Update: Trump submitted, under seal, another request not to have any evidence released before the election. It cites both Honig and Goldsmith. Neither, of course, address the point Trump claims to be making.
President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Trump’s deadline to submit objections to Jack Smith’s proposed redactions is today at 5PM ET. Last time, when Trump made no substantive suggestions, Judge Chutkan released the file.
