If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

108 replies
  1. earlofhuntingdon says:

    The American criminal justice system, designed by well-to-do federal and state legislators, is, indeed, poor at policing white collar crime, but good at attacking petty crimes by the poor and anyone of color. Smedley Butler experienced that firsthand, when as Philadelphia pubic safety director, he attempted to apply Prohibition-era laws against drinking to the country club set. His contract was not renewed. It’s a bias built into the system. But EW points out that the feds have been working hard to compile cases against Trump, that they have unprecedented hurdles in doing so, and that there’s a lot we don’t and shouldn’t know about what they’re doing at this stage of their investigations.

    • earlofhuntingdon says:

      I agree, Charlie, that it seems to be taking ages to hold Trump to account in the courts. But it’s taking longer to hold him and those who emulate him to account politically and in the public eye. That’s a bigger problem, because it what gives us more George Santoses and Ron De Santises.

      • JonathanW says:

        This is an excellent point earlofhuntingdon. Maybe I’m naive, but I keep waiting for the GOP to turn on Trump and his emulators. Even though it sure does seem like that’s out of the question, at least for now, I hold out hope that it will eventually lead to massive electoral defeat. Key word there is hope. No evidence in my favor.

        • PieIsDamnGood says:

          Trump is a perfect expression of the Republican party since at least 2008. What are they turning to?

        • e.a. foster says:

          It is doubtful the GOP will turn on Trump. Ignore him eventually, perhaps, but turn on him, not so much. Trump is manipulative. He will survive.

          Not being in the legal profession nor an /American, don’t know how long these types of cases take, not that there have been any exactly like it. Given what people think they now know, they want “action”, they want it done, and be able to move on. To convict successfully, it can take quite a bit of time.

          I’d like it to be “over”. 6 Jan. was very distressing, just watching it on T.V. , following this blog, watching the Committee, etc.

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. Technically speaking, you have two usernames, one with and one without a space between initials and last name. Please pick one and stick with it. Thanks. /~Rayne]

        • e.a.foster says:

          My apologies. Never give it much though. It just depended upon how fast I was typing. Will seek to improve consistency.

          Thank you for the work you do on the blog.

        • Rayne says:

          The next iteration of our comment system won’t let you through without an exact match as it will assume a typo or sockpuppetry. :-)

      • Savage Librarian says:

        Wait, wait…don’t tell me: Charlie Pierce is in the entertainment business? If you can’t beat the fabrications, join them?

        • Rugger_9 says:

          More of a whiff by Charlie Pierce for me since he’s better than this usually. I can understand the frustration but isolating Individual-1 is the key element here when the feds and state cops come for him.

    • jsrtheta says:

      US Attorneys do not spend much time going after poor people. State prosecutors, of which I was one, do, if only because the vast numbers of crimes at the state level are committed by poor people preying on other poor people.

      There’s a bit of overlap, though rarely cooperation. And the feds have significantly more resources than state prosecutors. So comparing the two is unhelpful.

      • Just Some Guy says:

        “US Attorneys do not spend much time going after poor people.”

        I’d like to make the observation that AUSAs aren’t any more or less susceptible to politics as any other aspect of American society. To make a comparison, in November of last year the AUSA of the Western District of Kentucky was able to successfully convict one “Grandmaster Jay” for allegedly pointing a rifle at law enforcement officers on a rooftop in downtown Louisville during protests in September of 2020:

        https:// http://www.courier-journal . com/story/news/local/2022/11/09/louisville-protest-nfac-leader-grandmaster-jay-sentenced/69634326007/

        I have no doubt that these charges were initially brought by the former AUSA of the Western District of Kentucky during the Trump administration, Russell Coleman (who is now running as a Republican for Kentucky Attorney General), despite being seen to fruition by Coleman’s successor. Coleman did not bring charges against any Oath Keeper militia members for their actions in Louisville during the same time frame September 2020, and I was surprised to read in reporting of testimony during the OK seditious conspiracy trial, that OK member actions in Louisville included illegally detaining and pointing firearms at a man. That has to have been, much like the delayed-until-last-year federal indictments of Louisville Metro Police Officers for their roles in lying to a judge to obtain a search warrant for Breonna Taylor’s apartment, a political decision on Coleman’s part.

        Of course, knowing this doesn’t really help I s’pose, but what I find aggravating is how little interest there seems to be in informing the public about these political decisions by the news media — with few exceptions here and there, not least of which here at emptywheel (for which I am grateful).

  2. wasD4v1d says:

    It seems to me that Charlie’s gripe is that it is time tfg himself were in the dock, not the scrubs.

    • emptywheel says:

      Scrubs? Perhaps you haven’t read the Jan6 case.

      It seems that Charlie’s gripe, like yours, is he doesn’t understand the investigation, that makes him anxious, so he made shit up.

      • wasD4v1d says:

        I’ve been following along right here on EW – I’m only pointing out that it *appears* to me that Charlie wants the mango menace to be getting fingerprinted. And anyone else in his view is a scrub, picket, or coffee boy. As to anyone under arrest or detention, I’m sure his point is that none are in the Goering – Himmler class (and my view is thank God TFG didn’t have any of that ilk around).

        • Rayne says:

          TFG certainly did have Goering-Himmler class around him. Because there was no absolute stranglehold on US government the way the Nazis had on Germany, their damage was restrained and their methods required more cloaking.

          That same cloaking has made it more difficult to ascertain who played a role in different crimes and at which points in time.

        • Ginevra diBenci says:

          Anyone who thinks Trump lacked Goering/Himmler types would do well to look up recent PR from Christopher C. Miller, Acting Sec Def during January 6 riots.

        • Ginevra diBenci says:

          Stephen Miller absolutely qualifies. Jason Miller might or might not, depending on what we learn.

          I singled out Christopher C. because he’s been blaring the ugly part as loud as he can, very recently. I’m on the fence as to whether his naked shilling for his book should be ignored or confronted for what it reveals about his motives in office in 2020-21.

        • Rayne says:

          When I watch his testimony before the House in 2021 — I’ve watched it several times now — he comes off as trying far too hard to make himself look good, like he’s selling since the facts presented simply aren’t good. I don’t trust him any further than I can throw him.

          This photo, taken a week after the insurrection, gives off that same vibe. Note his minion as well.
          Photo: former acting SecDec Christopher Miller and Kash Patel, 14-JAN-2021 via Wikimedia

  3. Disgusted says:

    The mainstream media have proven since 2015 that they are worse than bankrupt journalistically. One thing Trump has done has shown what an utter joke it has all become. Unfortunately, that works to his advantage.

    Americans, most current “journalists” included, so badly fail to appreciate what the press represented before this generation. Which is exactly why Trump attacks it so virulently.

    • Knowatall says:

      I recognize the bashing of the “MSM” is warranted in many SPECIFIC instances, but it should be noted that there is more to journalism and the press than the WaPo, NYT, and WSJ. If someone is truly interested in the contours of the rabbit hole, there are loads of quality sources for information. It turns out that Bill Maher may be right: perhaps Americans are stupid…or just lazy.

      • Disgusted says:

        Please, do tell, because to
        me the landscape looks sparser year after year. Even the Panama Papers isn’t “journalism” the way it existed even 20 or 25 years ago. Certainly there are bright spots, but the media conglomerates have learned the Russian lesson: let it all exist but discredit it where you can’t just drown it out.

  4. viget says:

    Thank you Dr. Wheeler. As always, cogent and extremely informative.

    People forget there are only a very few ways this whole thing can go right, and many many ways for it to go wrong. Let the DOJ do their job, and do it well.

  5. Sanjeevs says:

    Immediately after the insurrection an entire party closed ranks to support Trump.

    This week the Attorney General of the United States decided to appoint a member of that party, the insurrectionist party, as Special Counsel to investigate the President.

    • emptywheel says:

      I spent some time chatting about John Lasch, who got us this far, with people on both sides of the partisan and legal fence. They raved. They also had a lot good to say about Hur. And that’s before a small detail I know of that I’m fairly sure was an effort to put law above Trump.

      • Amers says:

        Is it correct in thinking each case brought before the federal court system and decided then serves as precedent and strengthens future arguements? I realize this must be a very basic question but I want to make sure my base understanding is solid. If Biden’s classified documents investigation ends up showing no wrongdoing on his part, will it serve to add more nuance (not sure of a better term here) to the established laws governing document handling? And if that is resolved before the case against Trump’s document handling would it give the govt more to stand on?

      • Ginevra diBenci says:

        My open source research showed the same thing. I don’t have access to small details like EW, but these prosecutors seemed tailor-made for the job.

      • jsrtheta says:

        Both Illinois senators, Dick Durbin and Tammy Duckworth, asked Biden NOT to replace Lausch as US Attorney.

        That tells me a lot. Because neither of those senators is anyone’s fool.

    • Rayne says:

      If you don’t understand the why behind that selection, find the door. You’re not up to the caliber of discussion here; your comments to date have not shown any improvement in understanding the investigations examined by this site.

      • David F. Snyder says:

        Not just they why but the integrity with which Garland is ensuring that sympathizers of Dickhead aren’t appointed to crucial positions. MG isn’t perfect, but he’s played very well the cards he’s been dealtl.

  6. John_02DEC2022_2011h says:

    All very good points. This site is by far the most informative source I know about.

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. We also have quite a few community members named “John.” For this reason your username will temporarily be changed to indicate the date of your first comment, until you’ve chosen a new username. Thanks. /~Rayne]

  7. Nick Caraway says:

    OT but urgent in my view, so kindly indulge me. The Republicans are playing with fire that they don’t understand when they talk about defaulting on Treasury debt. And there might be an easy way to take this issue off the table. The Treasury has authority to mint a platinum coin in any denomination and deposit this coin at the Federal Reserve. Treasury could, for example, mint a trillion dollar coin if it wanted to, thereby increasing Treasury’s borrowing authority by that amount. Arcane accounting, but legal.

    Now, a Republican Member of Congress might sue in federal court to test this move, but why not at least try to take the ball out of their hands? Hopefully the executive branch will move ahead expeditiously to mint the coin and pre-emptively protect the nation’s full faith and credit, rather than play an ongoing debt limit fight to win news cycles.

    This WaPo Op-ed dates from October 2021 but is apposite once more. https://www.washingtonpost.com/outlook/2021/10/01/mint-coin-debt-ceiling/

      • Nick Caraway says:

        Kindly accept my apology, I did not know this. I would never intentionally put “garbage” on this blog.

        For the record, my expertise is finance, not law, and I was motivated by the damage that a default could cause. Which I don’t think media take seriously enough — too often the controversy is both sided or even discussed as a “food fight,” as CNN recently termed it.

      • John Gurley says:

        Sorry, BMAZ, but your argument from that paper:

        “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution.”

        makes no sense.

        Congressional “power of the purse” only applies to spending going forward. Paying the debt resulting from such spending is constitutionally mandated. Congress cannot decide not to pay it. At least not Constitutionally, anyway.

        • John Gurley says:

          The real problem is that the congressionally-created debt ceiling is unconstitutional, since not raising it will eventually cause a violation of Amendment 14 section 4.

          Congress created the debt ceiling with the Second Liberty Bond Act of 1917, which allowed the Treasury to issue bonds and take on other debt without specific Congressional approval, as long as the total debt fell under the statutory debt ceiling. Passing debt payment authority off to the Treasury did not include releasing Congress from the obligation to honor the debt, and if Congress claims so, that obligation now falls on the Treasury.

          [Please use the same format each time you enter your username. Your comment was held up *again* because you typed in “john gurley” not “John Gurley.” It’s nearly 2:30 a.m. here, I can’t keep fixing this for you because I need sleep. /~Rayne]

      • JonathanW says:

        bmaz thanks for sharing the link to your post from all those years ago (before I had discovered this blog, and probably many readers are in a similar boat as me). I love your point, about how these types of things (EB usurping LB’s powers) are always done in the name of efficiency during a crisis. Feels very Lord of the Rings :)

        I didn’t see this addressed in the comments on that page, but I’m curious to hear your thinking (or any of the other legal minds here) on the JB’s usurping of the powers of the other branches. I have this very amateur-ish view (loosely held) that this is trending up, but I’m no historian nor am I a legal expert in any way.

        Maybe this comment is best left on that old post, but I figured it may get lost there. I hope this isn’t too OT for the current comment thread.

      • rattlemullet says:

        Thank you for this link. After WWII through the early 1960’s the top tier tax rate was 90%. The rest is history and now stands at 37%. The power of the purse held by congress currently and for the last few decades, has not and does not have the ability to manage a budget and to pay for the debt they have incurred. They are bound to the chain of continuing resolutions. To cure the problem requires having the courage to raise taxes equal to the rates that were in effect after WWII to solve this National Crisis. As congress progressively lowered the tax rate they now should progressively raise them at a faster rate. When in 1990 the tax rate was 28%. They should start with the higher income brackets. Courage, communication and honesty is lacking in out elected representatives for the far too many.

  8. Hope Ratner says:

    Thanks Marcy for this. I subscribe to Charlie’s blog and newsletter. I had to stop reading it when I got it today. It was just so depressing for someone like Charlie to basically throw in the towel on making TFG accountable for his sins. Reading you restored my faith and cheered me up as well. Thanks again.

  9. DrFunguy says:

    I love Pierce, even though I don’t always agree with him. He’s more of an editorialist.
    So, I love Marcy more, because it’s much harder to disagree with her cogently presented, well-documented facts.

    • Timmer says:

      I’m with you DrFun. Loves me my Charlie reads, but when it come legal quagmires, I defer to our Dr EW from IRL

  10. GWPDA says:

    Batting against Charlie Pierce is, ultimately, pointless. You don’t agree with him? Fine. He may not agree with you. That’s life and that’s how things roll. Sorry you can’t deal. Try harder.

    • Rayne says:

      Wooow. With only 13 comments under your belt here, you believe you’re qualified to be a massive dick? After failing to grasp the point that Pierce along with most major media outlets have failed us on the regular, by misreading, or distorting, or misrepresenting multiple investigations including the January 6 and Mar-a-Lago classified document theft investigations?

      Slow your roll, re-read the post. And then try harder, motherfucker.

    • earlofhuntingdon says:

      Blind, misogynistic tribal loyalty. You run the NYT’s oped page? Because something tells me your durability anywhere else is likely to be short.

    • Troutwaxer says:

      I’m going to try this a little differently, GWPDA. The whole fucking point of this site is to go to bat against the truth-obscuring tendencies of the mainstream media, which does – I’ll be very polite here – a piss-poor job of covering even the most atrocious behaviors of the political world (and I don’t just mean the right, though it’s mostly the right.) The inability of The New York Times, or the LA Times, or the Washington Post to see the things which are right in front of their fucking noses is legendary among the people who actually pay attention to the issues. The laziness, poor editing, lack of good firewalls between the advertising and news sections, the desperate need for clicks, the lack of subject-matter expertise among reporters, the lack of general legal-expertise among reporters, the ever-distorting bothsiderism and access journalism, and many other factors contribute to reporting that frankly just sucks!

      And the only way to make it suck less is to go to bat against it, to call people like Pierce out and hold them accountable, so if you’re going to hang out here, you need to understand that this “going to bat against” IS the biggest program on this site, and this program is vitally necessary.

      Ask yourself something: Why didn’t every paper in the U.S. have headlines for months which read, “Trump Still Doing Awful Job Of Controlling Pandemic?”

      Answer: It’s the Charlie Pierces of the world.

  11. Spencer Dawkins says:

    Dr. Wheeler,

    Two comments on your quote from Pierce.

    This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

    Genuine momentum, he says?

    I understand his point about wishing things had moved up the food chain faster – and honestly, I was closer to his point of view before you explained patiently that it’s super helpful to have guilty verdicts for the folks who said they were answering a call from Trump, if you want to convince a jury that Trump was asking people to commit a crime, and said people have already been convicted of said crime.

    Thank you for that.

    But if I had to pick between “momentum” and “indictments for Trump and his immediate circle of accomplices”, I’d choose indictments every time. They’re harder to ignore, at least until we get closer to fascism.

    • emptywheel says:

      With the Proud Boys, it’s not a model of incitement. It can’t be (and this was a factual error made in impeachment). They weren’t at the speech. They were already at the Capitol kicking off the attack, timed with and knowing details about his speech.

      Which is what makes this one different, in a really pivotal (literally) way. This is about laying the base of a conspiracy, not an incitement model. Trump agreed with Alex Jones, either directly or via people he agreed with, and Jones agreed with the Proud Boys, and so via those networked agreements, Trump was in a conspiracy with the people who orchestrated the attack. I fully assume if and when Trump is charged in that conspiracy, his Stand Back and Stand By will be an overt act in it.

      • BROUX says:

        I agree that this “Stand Back and Stand By” was not incitement, it was executive command, an overt act in the conspiracy. There were many such public overt acts, which get people confused. If you conspire so openly in broad daylight, can it still be a “conspiracy” (def: a secret plan by a group to do something unlawful or harmful)? If DOJ can reveal some/more secret “networked agreements” between Roger Stone and Alex Jones to the Proud Boys”via some people”, that will go a long way to cement the fact of this conspiracy. What are the odds that they will do this?

  12. Joeff53 says:

    Marcy, you have the facts and they are certainly encouraging. I think Charlie, whom I admire and respect, is trying to express concern that the House GOP will be able to throw enough sand in the gears to slow and perhaps even stall the investigations. Of course the courts will have a huge say in that. Balls and strikes indeed.

    • emptywheel says:

      But what does an expectation about the GOPers–aside from its potential centrality in Garland’s decision to appoint Smith–have to do with Garland’s actions? If this is about the GOP, it should have ZERO affect on how you view Garland.

  13. Cheez Whiz says:

    This post gets to the nub of a big problem. I call it the “Wag The Dog” syndrome, after the satire starring Robert DeNiro and Dustin Hoffman. DeNiro has a repeated phrase throughout the movie, “I saw it on television” used to mark turning points in the story that couldn’t be argued with or denied (“what do you mean the war is over?” “the President said the war is over. I saw it on television. The war is over.”). There’s massive frustration that justice is being denied or subverted, and I’m convinced it’s because reality is not conforming to a Law and Order story arc. They don’t see the expected beats on television, so “nothing is being done”. If the descent into a psychotic break that is the Gonzo Old Party isn’t enough to depress you, the anger of liberals at a reality that is not conforming to script writing conventions should do it.

    Over at The Rectification of Names, Yasetrebylanski is trying to describe a concern he has for the Abolition of Meaning, what he calls the effect on day–to-day life living in a culture where truth and history are plastic and rejection of authority and experience is embraced as a righteous stance supporting Freedom. You get people who mistake television and social media for reality, and when they conflict they reject reality. This, to put it mildly, is a big problem across the political spectrum.

    • Ginevra diBenci says:

      TV with its narrative arcs is indeed consuming our understanding of events. I am watching this happen with the spectacle accorded to the Idaho student murders; the suspect arrested in that case has been found resoundingly guilty by two network true-crime shows, whose vested interest lies in attracting viewers for advertisers. They are, as you say, framing this as the familiar fairy tale, “every parent’s nightmare,” and doing their damnedest to render a portrait of the accused as a nascent Jeffrey Dahmer.

  14. Bay State Librul says:

    High quality debate. Charlie is arguing emotionally, whereas Marcy logically.
    I think both will be happy in late January when Georgia’s Grand Jury results will be released.

  15. Peterr says:

    Like you, Marcy, I hold Charlie Pierce in high esteem, but I think he missed the ball on this one. But in pointing to the Nuremberg Trials, I think he unwittingly points to precisely why Garland is being so damned careful about how he proceeds with these cases.

    Part of what made the Nuremberg Trials so compelling is that Robert Jackson, the chief US prosecutor, knew from the outset that the prosecution was going to be charged with engaging in “victor’s justice” – that is, the victors in the war simply declare the losers to be criminal, engage in some kind of show trial, and execute them. To fight against this idea, and to engage in a proper pursuit of justice, he and his colleagues declared from the outset that the prosecution would base their cases on the words of the defendants, in written documents and recorded speeches. The Nuremberg prosecutors were meticulous in wanting to document exactly what the Nazis had said in real time, and what written orders they issued to carry out their outrageous crimes, so that no one could accuse the Allies of play-acting at a legal process.

    In other words, Jackson et al. knew that what they were doing at Nuremberg was as much about the perception of justice as the process of justice. Jackson and his colleagues were worried about the politics surrounding the legal process, and acted to neuter the accusations of political motivations.

    Whether he intends it or not, it strikes me that Garland is following the same path as Justice Jackson at Nuremberg.

    • emptywheel says:

      Right. I don’t know enough about the details of the Nuremberg Trials to do this. But two things that are fundamentally different are 1) the key targets in that “investigation” had agreed to an unconditional surrender and were legally being held — no one had to establish probable cause and immediately start sharing evidence and 2) much of this evidence was seized. Between encryption and vanishing/deleted evidence, and the privileges I lay out above, there are significant difficulties to collecting the equivalent evidence, and it was not possible to just go seize all of it on January 7, or even on January 21.

      That’s one of the things that gets missed in the surface news: the fact that enrique Tarrio’s phone took over a year to exploit, the fact that the privilege review of Rudy’s phones took 11 months, and the same will be true for each one of the 26 lawyers I laid out above.

      • GlennDexter says:

        We could include the fake electors in those who have had their communications seized or subpoenaed. Those were originally stayed by Justice Kagan of the SC when the J6 committee requested them. Now Jack Smith has done the same which carries a bit more “you better do it” but I’ve not heard of any compliance or where those stand.

  16. Bay State Librul says:

    In poker, they call it “tilting.” It doesn’t happen often, but when it does a player loses his cool and his money.
    Charlie has seen enough– and, as he says, “the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.”
    You have to admit there is enough mud out there to compete with the Mississippi River
    The fact that it took 11 months for a privilege review, and we have 26 lawyers, knee deep in legal maneuvering, gives me pause and angina.
    I’m willing to give Charlie a one-day pass.
    Remember, as he once said, “I’m a sucker for A Big Game.”
    That big game, justice, is being played out daily, and Pierce is telling his side of the story.

  17. Savage Librarian says:

    It seemed consequential to me that the prosecution was able to enter into evidence that “stand back and stand by” clip from the Trump/Biden debate. Journalists had a lot to say about it when it actually happened. And now…zip. It is perplexing. Is it ennui?

    If the Proud Boys trial is expected to last 6 weeks, maybe the media and journos will pay more attention and provide more relevant information as the days add up. I wonder if the Proud Boys trial factored into Joyce Vance’s estimation that March would be the month when we would begin to see some things relative to Jack Smith’s purview.

  18. Kelly says:

    This part here:

    “You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.”

    Speaks precisely to the psychological condition humans have – an emotional need to fill gaps in order to justify the emotion they feel, to close a mental circle, if you will, that on it’s face can’t be closed presently.

    That’s the pit Charlie fell in.

    Few have the discipline to permit themselves that un-closed mental circle and abide with it until the complete set of information is available. I’m glad Marcy possesses that discipline and reminds me of it.

    • Epicurus says:

      Daniel Kahneman – “Thinking, Fast and Slow”. Kahneman’s book is devoted to explaining that condition and the hard-wiring in our brains that causes it.

  19. Dustbowl Observer says:

    I suspect Charlie noticed but did not understand the implication and therefore thought it to be trivial.
    People who are not steeped in law do not appreciate the extensive structure required to build this kind of a major case. Only a few reporters noted that “they are going out of their way to mention Trump” in the sedition charges. They don’t see that required evidence only recently became available through court decisions and J6 releases.

    • Rayne says:

      George Santos a ‘bad guy’ who did ‘bad things’ but should not be forced out,” say another well-known GOP ‘bad guy’ who did ‘bad things’ who should have been forced out by voters.

      Sadly, FL-01 voters remain suckers for hebephiles who wear orange foundation and an excess of hair product.

  20. foggycoast says:

    marcy wrote:”It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again”.

    that’s a pretty succinct statement as to why expediency is important. yes, all the legal scholars here will point out the impediments to getting to the end game faster. to me that is an indictment of the legal system that the co-conspirators and insurrectionist now in charge of the House have not had any legal consequences that would have prevented them from sitting in Congress. justice is not the goal, imho, prevention of the need for it is. not a criticism of marcy or really any others here. marcy does amazing work that is rightly praised and appreciated.

    • earlofhuntingdon says:

      If “justice is not the goal,” then neither is good governance. You are, instead, advocating for expediency via the, “because I can,” rule, which is the same as the insurrectionists you want to punish. What goes around, comes around.

    • Rayne says:

      It’s the Department of Justice, not the Department of Political Expediency, nor the Department of Coup Prevention.

      Really quite fed up with the demands for speed over accuracy and thoroughness in spite of investigation(s) the size and complexity of which this nation’s law enforcement and justice system hasn’t faced before, while insisting that the same system head off the next attempt while hamstrung by an insufficiency of information, evidence, and ongoing obstruction by perps across the country.

    • Dustbowl Observer says:

      The proper speedy and thorough redress for all the J6 doings would normally lie in a total thrashing at the polls. That is the political solution to a political problem. That would constitute some sort of revenge. What is most distressing and alarming is that that is not happening. We keep talking about behavior that is “unprecedented” and “a low point” and “shameful” and yet it does not result in repudiation by the voters. Looking to the justice system to save us is folly. Just like the nuclear clock was at five minutes to midnight for many years, we are – politically – at 1934 and moving to 1936. Whatever the causes of this – be they social media, oligarch money, income inequality, lack of education, or resentment over waves of migration around the world – they lie with society at large. The justice system will have but a small role to play at the margins.

    • emptywheel says:

      And this is why wails for expediency are such a problem. It is a wholesale rejection of democracy and rule of law, and therefore a capitulation to the same forces that Trump pushes.

      • Troutwaxer says:

        The problem is that we need a solution that’s both just and fast, because if we end up with a Republican president or both a Republican House and a Republican Senate in 2024 we’ll be in awful trouble when it comes to both punishing the perps and removing them from political life. Unfortunately, the reality of the matter is “You can have it fast, or you can have it just, pick one.”

    • Rayne says:

      Look, your comments have gone through auto-moderation because you’ve displayed an attitude problem across your +163 comments published to date. Yelling at us — and yes, we see it — isn’t going to persuade us your attitude has changed nor change minds about your perspective regarding expediency versus thoroughness in justice, or for that matter on any other topic.

      Just as you paid nothing to be here, we owe you nothing. We’re one of the few remaining sites with an active commenting community — we don’t have to provide one for users to treat us badly.

  21. earlofhuntingdon says:

    If “justice is not the goal,” then neither is good governance. You are, instead, advocating for expediency via the, “because I can,” rule, which is the same as the insurrectionists you want to punish. What goes around, comes around.

  22. earlofhuntingdon says:

    The vaunted NY Democratic Representative Hakeem Jeffries, minority leader of the House, has joined NY governor Kathy Hochul in cheering on her own goal: her appointment of a hardline conservative jurist to lead the state’s highest court, a move that would harm progressives and the rule of law in NY for half a generation.

    Hochul has revived the essence of her disgraced predecessor, long-time nominally Democratic governor Andrew Cuomo, and nominated a hard right Republican to a fourteen-year term as chief judge of the state’s top court, the Court of Appeals. The nomination would give Republicans a long-term majority on the court. Democrats have a super majority in the state senate, which has to confirm her appointment. So far, they are saying no and asking why they have to.

    The framing of the attached article is that this is about appointing a Latino to the court, “giving them a seat at the table.” That strikes me as a lame cover story, an otherwise worthy goal that’s being used to promote much less worthy ones. I don’t doubt that, politics being what they are, Hochul has cut a major deal with Republicans and ConservaDems, and that this appointment is part of the price. But lets not pretend it’s about something most voters would regard as promoting the interests of average New Yorkers.


    • timbozone says:

      Uh…what? Isn’t that something that should be labeled as OT? I had to read through the whole thing to discover it wasn’t about the topic at hand…

    • earlofhuntingdon says:

      I meant to say yesterday that Gov. Kathy Hochul’s deal to keep NY’s highest court firmly in arch-conservative Republican hands would hand a lot of anti-consumer, limited government, and pro-business decisions to corporate America. It’s the sort of deal one would make with Wall Street to keep one’s campaign coffers full. And that’s what would happen with her fourteen-year appointment of Hector LaSalle as Chief Judge.

      This is important not just for the people of NY. New York and California have long been the two most influential state courts, with other states and the feds, and internationally. The latter is via NYC’s status as the first or second home to global corporate headquarters, to international banks, and to international dispute resolution proceedings.

      But Gov. Hochul is doubling down. At a meeting in the Bronx recently to promote his nomination, she said, “Hector LaSalle is the best person to serve as Chief Judge of the New York State Court of Appeals.”

      She’s a Democrat, her party holds a super-majority in the state senate, and she could win approval for virtually any nomination she wants. But she wants this one. She is making it an existential fight, burning bridges with her electorate and progressive and some moderate Dems. Her choice is not supported by a majority of Latinos, ignores other highly qualified candidates, and goes against many of Hochul’s campaign promises, especially relating to abortion.

      [Quote via Hochul’s twtr feed for January 14, 10.46 pm.]

  23. Doctor My Eyes says:

    In the past I have often given a modicum of slack to professional commentators for not having the patience or diligence to delve deeply enough into details to understand the essentials of the sedition investigation. This example seems different. The information is not subtle: if one is taking the case against the former president seriously, then the current trial OBVIOUSLY is what is front and center at this time. And the blaming of Trump at the opening of the trial was not subtle. This may be sheer laziness on the part of Pierce, but I’m guessing its more inertia, the stubbornness of an attitude or belief that has been held for so long that it is no longer questioned. It has been this very tendency of falsehoods to morph to truths when repeated often enough that has been so upsetting about the persistent, childish, ignorant whining about “Merritt Garland”. As a final complaint about this situation, let me say that the system of law and justice is NOT a PERSON!

    The lazy regurgitation that “Garland has done nothing” has become as tiresome as vaccine denialism. Here’s hoping it doesn’t eventually become as damaging.

    Thanks for the clear reporting. I wouldn’t know any of this were it not for EW, which is a truly sad, scary statement.

  24. Bay State Librul says:


    You hit on the crux of the matter when you argue that the “stubbornness of an attitude or belief that has been held for so long that it is no longer questioned.”
    As I see it, all humans struggle with their stubbornness, and can lash out, when one is confronted with a counterpoint.
    To borrow a term from Phillip Roth, maybe it’s the “Human Stain” that runs deep within ourselves?

  25. Rugger_9 says:

    OT but there is the attention-getting part of it which meshes with the topic. It would seem a doubly fake fundraising email that appeared to show the DeSantis team supporting the 2024 campaign for Individual-1 was circulated, was called out as fake by the DeSantis team (who pointed to Individual-1). Individual-1’s campaign then called out that accusation as fake as well. So, no one really knows.

    Looking at this without getting too deep into the weeds, it would appear that there is some significant effort to challenge Trump for party supremacy between the whispers and snubs and now this bit of kayfabe. We’ll see what develops, but it’s also not outside the realm of possibility that someone will now be willing to talk to DoJ if Individual-1 isn’t so scary any more.

  26. jwh186 says:

    Thank you Marcy, for this post and all the others you’ve written and will continue to write on this subject. I’d just like to add that every time Charlie Pierce or some other pundit complains about not indicting him yet they are just adding to the perception that this is political. Can they all just shut up!

    And for all those who carry on endless conversations about whether or not Garland has the balls to indict him, obviously haven’t done their homework. Garland plays to WIN!

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