On Friday, Nate Silver tweeted and substacked a piece declaring that there must be herding going on in the casino.

His substack analysis didn’t acknowledge, however, that this herding was going on in his casino.

Now granted, our forecast is close too. But it’s based on polling averages: dozens of polls have been released in each of these states over the past month. That greatly increases the sample size. Collectively, they’ve surveyed about 230,000 voters.

By contrast, the median sample size in individual polls in these states is 800 voters. In a 49-49 race in a poll of 800 people — assuming 2 percent goes to third parties — the theoretical margin of error for the difference between Trump and Harris is ±6 points. If that sounds higher than you’re expecting, that’s because the margin of error that’s usually reported in polls is only for one candidate’s vote share. For instance, in a poll of 800 people, Trump’s margin of error is about ±3 points, as is Harris’s. However, basically every vote that isn’t a vote for Trump is a vote for Harris. If Trump gets 52 percent of the vote instead of 49, that implies Harris will receive 46 percent.1 So the margin of error on the difference separating Trump and Harris is ±6.

What this means is that if pollsters are doing honest work, we should see a lot more “outliers” than we do — even if people love to complain about them on Twitter.

In our database as of this afternoon’s model run, there were 249 polls in the seven battleground states that met Silver Bulletin standards and did at least some of their fieldwork in October.2 How many of them showed the race in either direction within 2.5 percentage points3, close enough that you could basically call it a tie?

Well, 193 of them did, or 78 percent. That’s way more than you should get in theory — even if the candidates are actually exactly tied in all seven states, which they almost certainly aren’t.

The reason we’re seeing this herding is because Nate Silver has spent 16 years training pollsters to herd. It probably makes things worse that polling has become far more difficult, far more expensive, and far more important in shitty campaign coverage (not least because of Nate Silver). The herding is happening because, thanks to the early but not more recent success of Nate, political operatives know they can create a reality in poll averages.

Well, ask and you shall receive, Nate, because Ann Selzer doesn’t herd. Last night, the Iowa pollster surprised everyone with a poll showing Kamala Harris ahead in Iowa.

A new Des Moines Register/Mediacom Iowa Poll shows Vice President Harris leading former President Trump 47% to 44% among likely voters just days before a high-stakes election that appears deadlocked in key battleground states.

The results follow a September Iowa Poll that showed Trump with a 4-point lead over Harris and a June Iowa Poll showing him with an 18-point lead over Democratic President Joe Biden, who was the presumed Democratic nominee at the time.

“It’s hard for anybody to say they saw this coming,” said pollster J. Ann Selzer, president of Selzer & Co. “She has clearly leaped into a leading position.”

As Selzer describes, this effect is driven by older women voters.

The poll shows that women — particularly those who are older or who are politically independent — are driving the late shift toward Harris.

“Age and gender are the two most dynamic factors that are explaining these numbers,” Selzer said.

Independent voters, who had consistently supported Trump in the leadup to this election, now break for Harris. That’s driven by the strength of independent women, who back Harris by a 28-point margin, while independent men support Trump, but by a smaller margin.

Similarly, senior voters who are 65 and older favor Harris. But senior women support her by a more than 2-to-1 margin, 63% to 28%, while senior men favor her by just 2 percentage points, 47% to 45%.

Nate promptly set to work describing how brave it was for Selzer to release this because a gambling market Nate has helped to create says she’s wrong.

Releasing this poll took an incredible amount of guts because — let me state this as carefully as I can — if you had to play the odds, this time Selzer will probably be wrong. Harris’s chances of winning Iowa nearly doubled in our model from 9 percent to 17 percent tonight, which isn’t nothing. Polymarket shows a similar trend, moving from 6 percent to 18 percent after the survey. But that still places Harris’s odds at around 5:1 against.

While I don’t pay for Nate Silver’s gambling market, he appears to have gone on to argue that what Selzer is measuring is inflation, not just — as Selzer explained — big movement from women.

Meanwhile, that Other Nate, Nate Cohn, released this column, in what former pollster Adam Carlson described as “rough timing.”

Other Nate then went on to point to things that followed the pandemic but which are either now in the past or which polls always reflected a misunderstanding on the part of voters.

[T]he events that followed the pandemic took a serious toll on the case for liberalism, whatever the precise merits of the arguments. Inflation and high interest rates could be blamed on high government spending stimulating excessive demand. High gas prices could be blamed on suspending drilling permits and the termination of the Keystone pipeline project. A surge of migrants could be blamed on the administration’s looser border policy, which became politically untenable; homelessness, crime and disorder made the case for “law and order.”

From there, Other Nate made some false claims, such as that Harris — whose plan to include home health care in Medicare has been ignored by the press, and who mentions plans to increase the child tax credit and mortgage assistance in every stump speech — had moved away from populism.

The traditional Democratic program to expand the social safety net has played a diminished role in the campaign. In her speech at the Democratic convention, Ms. Harris didn’t mention the unfinished business of Obama-Biden era liberalism: paid family leave, an expanded child tax credit, student loan forgiveness, universal pre-K or free community college.

And Other Nate claimed that polls have shown that Trump does better on the issue that is most important to voters votes.

If there’s any poll question that captures the swing toward a more conservative environment, it’s the question of which party (or candidate) would do the best on the issue that’s most important to your vote. All cycle, polls have shown Republicans and Mr. Trump with an advantage on this measure.

Other Nate didn’t mention that on the one that matters to most people, the economy, Harris has caught up to Trump.

Crazier still, Other Nate didn’t mention that for those who say abortion is the most important, Harris always wins. He simply disappeared abortion in his claim that voters think Trump would do better on all issues that are most important to them.

The other day, I hoped that someone with interns would review the Other Nate’s statements about this race — but hell, do it for First Nate, too — to see whether his mentions of polling adjustments adjust for the Dobbs effect, the recent trend in which, with one exception, polls have always underestimated and often wildly underestimated pro-abortion outcomes.

Other Nate has spent a great deal of time talking about how polls missed Trump in 2016 and 2020.  On October 6, Other Nate described how whether pollsters are using voters’ recalled votes in 2020 explains a split in the polls (in none of Other Nate’s discussions of recalled vote have I seen any discussion of whether pollsters are accommodating for the documented greater mortality rates among Trump supporters since 2020 arising from vaccine skepticism). On October 22, Other Nate described the theories for why pollsters missed Trump in 2020. The next day, Other Nate described all the adjustments polls have made to remedy their 2020 Trump miss.

This trend in ignoring the Dobbs effect has continued more recently. Other Nate didn’t mention abortion or Dobbs in this column asking whether we can trust polls.

Other Nate didn’t field any questions that addressed abortion in this column about early voting (he did suggest that pollsters expect the normal amount of women in the electorate, 53%).

This column is particularly remarkable. In a column conceding that Harris may win because her coalition draws on more reliable voters than Trump’s, Other Nate didn’t mention that women are more reliable voters. Other Nate focuses on education, but only speaks of gender when describing that Trump’s bros are less likely to turn out.

But this election seems different. As we’ve reported all cycle, Democrats excel among high-turnout voters, while Donald J. Trump is strong among relatively low-turnout voters. He’s made his biggest gains among low-turnout demographic groups like young men and nonwhite voters.

Other Nate linked to an Anna Greenberg tweet noting that Trump was relying on less reliable voters. He didn’t mention the Greenberg tweet posted five minutes later in the very same thread decrying the focus on young men while ignoring how pissed women are.

Greenberg is among the thousands of people who have RTed this tweet from me.

You get my point.

This entire election has been disproportionately viewed through the lens of polling, polling that even the Two Nates confess exhibit obvious problems.

And best as we can tell, pollsters have contorted their polls to ensure they don’t miss Trump voters (again, with no discussion of how you account for higher COVID-associated death rates among Trump supporters since 2020). But they have (apparently) done absolutely nothing to ensure they don’t miss pissed off women.

And then Ann Selzer came along.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

Alexander Smirnov has started filing motions in limine. I’ll return to them after Tuesday.

But for the moment I want to flag a detail he included in a motion to exclude the interview he had on September 27, 2023.

The interview takes up four pages of the indictment. In addition to providing varying statements about the charged false statement — that is, that in a call in 2019, Mykola Zlochevsky accused Joe Biden of accepting a bribe — Smirnov allegedly told a new false story, one that is not charged. he claimed that Hunter Biden had been recorded at the Premier Palace in Kyiv. As the indictment pointed out, that was obviously false, as Hunter Biden had never been to Kyiv.

I’ve always argued that that was an attempt to string on investigators, to give them more dirt on Hunter Biden, precisely what (I speculated) Smirnov perceived that they wanted.

But it was not charged for any of the claims he made in that interview, in which he substantially restated the initial false claim.

This may be why: His motion in limine describes that Special Counsel — that is, David Weiss — attended the interview, and it was not recorded.

Despite seeking an Indictment based solely on statements made in June 2020, Mr. Smirnov understands that the Government intends to introduce statements Mr. Smirnov allegedly made more than three years later, during his interview the FBI on September 27, 2023. Special Counsel was present at this interview, which was never recorded.

This is not — not remotely!! — how you approach an interview with a guy you suspect of lying.

On the contrary, it’s how you approach an interview with someone you’re still treating as a witness against someone else.

This strongly suggests that as late as September 27, 2023 David Weiss was still chasing the effort, launched by Bill Barr’s DOJ, to frame Joe Biden.

As I’ll explain more next week, there are other elements that suggest Weiss and his prosecutors are trying to hang all this exclusively on Smirnov.

Just over a year ago, I described how Twitter had been used as a way to sow false claims in support of Trump in 2016 and 2020.

I described how, in 2016, trolls professionalized their efforts, with the early contribution of Daily Stormer webmaster Andrew “Weev” Auernheimer. I quoted testimony from Microchip, a key cooperating co-conspirator at Douglass Mackey’s trial, describing how he took unoffensive content stolen from John Podesta and turned it into a controversy that would underming Hillary Clinton’s chances.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact-check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

After Trump won, the trolls turned immediately to replicating their efforts.

Microchip — a key part of professionalizing this effort — declared, “We are making history,” before he immediately started pitching the idea of flipping a European election (as far right trolls attempted with Emmanuel Macron’s race in 2017) and winning the 2020 election.

They did replicate the effort. That same post described how, in 2020, Trump’s role in the bullshit disinformation was overt.

Trump, his sons, and his top influencers were all among a list of the twenty most efficient disseminators of false claims about the election compiled by the Election Integrity Project after the fact.

While some of the false claims Trump and his supporters were throttled in real time, almost none of them were taken down.

But the effort to throttle generally ended after the election, and Stop the Steal groups on Facebook proliferated in advance of January 6.

To this day, I’m not sure what would have happened had not the social media companies shut down Donald Trump.

And then, shortly thereafter, the idea was born for the richest man in the world to buy Twitter. Even his early discussions focused on eliminating the kind of moderation that served as a break in 2020. During that process, someone suspected of being Stephen Miller started pitching Elon Musk on how to bring back the far right, including “the boss,” understood to be Trump.

Musk started dumping money into Miller’s xeno- and transphobic political efforts.

Once Musk did take over Xitter, NGOs run by far right operatives, Republicans in Congress, and useful idiots coordinated to undercut any kind of systematic moderation.

As I laid out last year, the end result seemed to leave us with the professionalization and reach of 2020 but without the moderation. Allies of Donald Trump made a concerted effort to ensure there was little to hold back a flood of false claims undermining democracy.

Meanwhile, the far right, including Elon, started using the Nazi bar that Elon cultivated to stoke right wing violence here on my side of the pond, first with targeted Irish anti-migrant actions, then with the riots that started in Southport. I’ve been tracing those efforts for some time, but Rolling Stone put a new report on it out, yesterday.

Throughout, the main forum where right-wing pundits and influencers stoked public anger was X. But a key driver of the unrest was the platform’s owner himself, Elon Musk. He would link the riots to mass immigration, at one point posting that “civil war” in the U.K. was inevitable. He trolled the newly elected British prime minister, Keir Starmer — whose Labour Party won power in July after 14 years of Conservative rule — for supposedly being biased against right-wing “protesters.” After Nigel Farage, the leader of radical-right party Reform U.K. and Trump ally, posted on X that, “Keir Starmer poses the biggest threat to free speech we’ve seen in our history,” Musk replied: “True.”

Anything Musk even slightly interacted with during the days of violence received a huge boost, due to the way he has reportedly tinkered with X’s algorithm and thanks to his 200 million followers, the largest following on X. “He’s the curator-in-chief — he’s the man with the Midas touch,” says Marc Owen Jones, an expert on far-right disinformation and associate professor at Northwestern University in Qatar. “He boosted accounts that were contributing to the narratives of disinformation and anti-Muslim hate speech that were fueling these riots.”

Elon Musk, the richest man in the world, one of Trump’s most gleeful supporters, someone with troubling links to both China and Russia, has set up a one-stop shop: Joining false claims about the election with networks of fascists who’ll take to the streets.

With that in mind, I want to point to a number of reports on how disinformation has run rampant on Xitter.

The Center for Countering Digital Hate (one of the groups that Elon unsuccessfully sued) released a report showing that even where volunteers mark disinformation on Xitter, those Community Notes often never get shown to users.

Despite a dedicated group of X users producing accurate, well-sourced notes, a significant portion never reaches public view. In this report we found that 74% of accurate Community Notes on false or misleading claims about US elections never get shown to users. This allows misleading posts about voter fraud, election integrity, and political candidates to spread and be viewed millions of times. Posts without Community Notes promoting false narratives about US politics have garnered billions of views, outpacing the reach of their fact-checked counterparts by 13 times.

NBC described Elon’s personal role in magnifying false claims.

In three instances in the last month, Musk’s posts highlighting election misinformation have been viewed over 200 times more than fact-checking posts correcting those claims that have been published on X by government officials or accounts.

Musk frequently boosts false claims about voting in the U.S., and rarely, if ever, offers corrections when caught sharing them. False claims he has posted this month routinely receive tens of millions of views, by X’s metrics, while rebuttals from election officials usually receive only tens or hundreds of thousands.

Musk, who declared his full-throated support for Donald Trump’s presidential campaign in July, is facing at least 11 lawsuits and regulatory battles under the Biden administration related to his various companies.

And CNN described how efforts from election administrators to counter this flood of disinformation have been overwhelmed.

Elon Musk’s misinformation megaphone has created a “huge problem” for election officials in key battleground states who told CNN they’re struggling to combat the wave of falsehoods coming from the tech billionaire and spreading wildly on his X platform.

Election officials in pivotal battleground states including Pennsylvania, Michigan and Arizona have all tried – and largely failed – to fact-check Musk in real time. At least one has tried passing along personal notes asking he stop spreading baseless claims likely to mislead voters.

“I’ve had my friends hand-deliver stuff to him,” said Stephen Richer, a top election official in Arizona’s Maricopa County, a Republican who has faced violent threats for saying the 2020 election was secure.

“We’ve pulled out more stops than most people have available to try to put accurate information in front of (Musk),” Richer added. “It has been unsuccessful.”

Ever since former President Donald Trump and his allies trumpeted bogus claims of election fraud to try to overturn his loss to Joe Biden in 2020, debunking election misinformation has become akin to a second full-time job for election officials, alongside administering actual elections. But Musk – with his ownership of the X platform, prominent backing of Trump and penchant for spreading false claims – has presented a unique challenge.

“The bottom line is it’s really disappointing that someone with as many resources and as big of a platform as he clearly has would use those resources and allow that platform to be misused to spread misinformation,” Michigan Secretary of State Jocelyn Benson told CNN, “when he could help us restore and ensure people can have rightly placed faith in our election outcomes, whatever they may be.”

Finally, Wired explained how, last week, Elon’s PAC made it worse, by setting up a group of 50,000 people stoking conspiracy theories.

For months, billionaire and X owner Elon Musk has used his platform to share election conspiracy theories that could undermine faith in the outcome of the 2024 election. Last week, the political action committee (PAC) Musk backs took it a step further, launching a group on X called the Election Integrity Community. The group has nearly 50,000 members and says that it is meant to be a place where users can “share potential incidents of voter fraud or irregularities you see while voting in the 2024 election.”

In practice, it is a cesspool of election conspiracy theories, alleging everything from unauthorized immigrants voting to misspelled candidate names on ballots. “It’s just an election denier jamboree,” says Paul Barrett, deputy director of the Center for Business and Human Rights at New York University, who authored a recent report on how social media facilitates political violence.

[snip]

Inside the group, multiple accounts shared a viral video of a person ripping up ballots, allegedly from Bucks County, Pennsylvania, which US intelligence agencies have said is fake. Another account shared a video from conspiracy theorist Alex Jones alleging that unauthorized immigrants were being bussed to polling locations to vote. One video shared multiple times, and also purportedly from Buck County, shows a voter confronting a woman with a “voter protection” tag on a lanyard who tells the woman filming that she is there for “early vote monitoring” and asks not to be recorded. Text in the accompanying post says that there were “long lines and early cut offs” and alleges election interference. That post has been viewed more than 1 million times.

Some accounts merely retweet local news stories, or right-wing influencers like Lara Loomer and Jack Posobiec, rather than sharing their own personal experiences.

One account merely reshared a post from Sidney Powell, the disgraced lawyer who attempted to help Trump overturn the 2020 election, in which she says that voting machines in Wisconsin connect to the internet, and therefore could be tampered with. In actuality, voting machines are difficult to hack. Many of the accounts reference issues in swing states like Pennsylvania, Michigan, and Wisconsin.

This latter network includes all the same elements we saw behind the riots in the UK — Alex Jones, Trump’s fascist trolls, Russian spies (except Tommy Robinson, who just got jailed on contempt charges).

Now, in my piece last year, I suggested that Elon has diminished the effectiveness of this machine for fascism by driving so many people off of it.

The one thing that may save us is that this Machine for Fascism has destroyed Xitter’s core value to aspiring fascists: it has destroyed Xitter’s role as a public square, from which normal people might find valuable news. In the process, Elmo has destroyed Twitter’s key role in bridging from the far right to mainstream readers.

Maybe that’s true? Or maybe by driving off so many journalists Elon has only ensured that journalists have to go look to find this stuff — and to be utterly clear, this kind of journalism is some of the most important work being done right now.

But with successful tests runs stoking far right violence in Ireland and the UK, that may not matter. Effectively, Elon has made Xitter a massive version of Gab, a one-stop shop from which he can both sow disinformation and stoke violence.

On a near daily basis, DOJ issues warnings that some of this — not the false claims about fraud and not much of the violent rhetoric, but definitely those who try to confuse voters about how or when to vote — is illegal.

NBC describes that election officials are keeping records of the corrections they’ve issued, which would be useful in case of legal cases later. What we don’t know is whether DOJ is issuing notices of illegal speech to Xitter (they certainly did in 2020 — it’s one of the things Matt Taibbi wildly misrepresented), and if so, what they’re doing about it.

I am, as I have been for some time, gravely alarmed by all this. The US has far fewer protections against this kind of incitement than the UK or the EU. Much of this is not illegal.

Kamala Harris does have — and is using — one important tool against this. Her campaign has made a record number of contacts directly with voters. She is, effectively, sidestepping this wash of disinformation by using her massive network of volunteers to speak directly to people.

If that works, if Harris can continue to do what she seems to be doing in key swing states (though maybe not Nevada): getting more of her voters to the polls, then all this will come to a head in the aftermath, as I suspect other things may come to a head in the transition period, assuming Harris can win this thing. In a period when DOJ can and might act, the big question is whether American democracy can take action to shut down a machine that has been fine-tuned for years for this moment.

American law and years of effort to privilege Nazi speech have created the opportunity to build a machine for fascism. And I really don’t know how it’ll work out.

Update: Thus far there have been three known Russian disinformation attempts: a false claim of sexual abuse targeted at Tim Walz, a fake video showing votes in Bucks County being destroyed, and now a false claim that a Haitian migrant was voting illegally in Georgia.

This statement from Raffensperger, publicly asking Musk to take it down, may provide some kind of legal basis to take further steps. That’s the kind of thing that is needed to get this under control.

Update: I meant to include the Atlantic’s contribution to the reporting on Musk’s “Election Integrity Community;” it’s a good thing so many people are focused on Elon’s efforts.

Nothing better encapsulates X’s ability to sow informational chaos than the Election Integrity Community—a feed on the platform where users are instructed to subscribe and “share potential incidents of voter fraud or irregularities you see while voting in the 2024 election.” The community, which was launched last week by Musk’s America PAC, has more than 34,000 members; roughly 20,000 have joined since Musk promoted the feed last night. It is jammed with examples of terrified speculation and clearly false rumors about fraud. Its top post yesterday morning was a long rant from a “Q Patriot.” His complaint was that when he went to vote early in Philadelphia, election workers directed him to fill out a mail-in ballot and place it in a secure drop box, a process he described as “VERY SKETCHY!” But this is, in fact, just how things work: Pennsylvania’s early-voting system functions via on-demand mail-in ballots, which are filled in at polling locations. The Q Patriot’s post, which has been viewed more than 62,000 times, is representative of the type of fearmongering present in the feed and a sterling example of a phenomenon recently articulated by the technology writer Mike Masnick, where “everything is a conspiracy theory when you don’t bother to educate yourself.”

Both parties filed at least one lawsuit in Pennsylvania the other day. They suggest that Trump is seeking to create problems, not voters.

Trump and Republicans sued Bucks County for shutting down early voting (which in Pennsylvania amounts to filling out a mail-in ballot in person) three hours early the other day. As a result, the county was ordered to offer three more days of in-person early voting.

a) Declare that the Bucks County’s actions in turning away voters who sought to apply for a mail-in ballot and receive one in person before the deadline of 5:00 p.m. on October 29, 2024 violated the Pennsylvania Election Code,

b) Order the Bucks’ County Board of Elections to permit any persons who wish to apply for and receive a mail-in ballot to appear at the Elections Bureau office and do so during normal business hours before the close of business on October 30, 2024.

As a number of outlets have reported, Trump used this incident to claim voter fraud. But raising concerns and getting accommodations is, instead, how the system works.

Trump hasn’t complained about another problem in the state.

As Democrats allege in a suit against Erie County, one or two fairly major fuck-ups with their sent mail-in ballots, one stemming from their vendor, and another stemming from the postal service, have led to delays in a significant number of Erie voters getting their absentee ballots. The impact is significant: Erie’s 57% early turnout lags every other county save (gulp) Luzerne. And even though Democrats have returned their ballots at a much higher pace than Republicans — over 62% of Democrats as compared to 52% of Republicans, one of the biggest gaps in the state — there are still 9,000 outstanding Democratic ballots and 6,000 Republican ones.

Republicans may not be complaining because the differential still works out to a 3,000 vote advantage for them, in a bellwether county. Or maybe they’re simply not tracking their votes that closely.

Some of the boys purportedly in charge of Trump’s turnout have just discovered that women are voting at much higher rates than men, which has been evident for weeks.

In any case, the local Dems in Erie simply taking this in stride, finding a way to get their votes counted.

During an Oct. 24 public meeting of the Board of Elections, Sam Talarico, the head of the local Democratic Party, said his “only concern is about people who have not received their mail-in ballots yet. I’m one of them.”

In an interview on Wednesday, he said he had finally received his ballot on Monday and returned it the next day.

“I’m a little bit concerned, but I do know the county is doing everything they can to rectify the situation,” he said.

There’s a hearing on the Erie lawsuit today (though the most interesting Pennsylvania hearing will be the hearing in Philadelophia DA Larry Krasner’s effort to enjoin Elon Musk’s million dollar giveaways under Pennsylvania’s lottery law, for which Judge Angelo Foglietta ordered Elon Musk’s personal attendance).

Until then, it appears that Pennsylvania’s Democrats are simply going to work to turn out every single vote.

There have been some developments in the Proud Boy prosecutions I want to note.

First, according to a status update filed on October 23, Jeremy Bertino — the most important cooperating Proud Boy witness — is done cooperating. That follows a four month continuance obtained in June. He will be sentenced in February.

Then, in the case of the Ron Loerkhe and Jimmy Haffner, on October 24, DOJ asked for and got an awkwardly timed 35-day motion to continue, until December 3, between the election and inauguration. AUSA Jason McCullough — who took over the case from Erik Kenerson a year ago, had previously asked for and gotten a 75-day continuance in July, which would have expired Tuesday. This case has done nothing but continue like this since they were first charged in December 2021. As I described then, Loehrke especially, who is a former Marine, was pretty instrumental in moving the crowd around on January 6, and would have been involved in any charges tied to the effort to open a second front of attack on the East doors of the Capitol.

Finally, on October 25, Alexis Loeb dropped off some or all of her cases. For years, the AUSA has shepherded a fairly breathtaking number of Proud Boy and Proud Boy adjacent cases — often those where the defendants couldn’t be tied to the Proud Boy leaders. In that role, she has had to manage a number of the cases that SCOTUS’ Fischer decision most complicated, in some cases shifting obstruction charges into civil disorder ones or arguing that defendants get the same sentence on the latter charge after the government gave up on the former. Ockham’s razor would suggest she’s dropping off because she has already put years into an investigation that for most others was a six month assignment. All the more so given she has finished up some recent business. On October 8, she got a plea with Jerry Braun; on October 18, Tim Kelly denied his bid to stay out of prison pending sentencing. On October 25, Colleen Kollar-Kotelly denied a bid by George Tenney to reduce his sentence. And on October 23, Kollar-Kotelly held a stipulated trial for Nicholas Kennedy’s obstruction charge (he already pled to his other charges, including Civil Disorder) under the new Fischer rules.

But not only is Fischer himself still pending, with trial scheduled in February, but Kennedy is not done. Immediately after the stipulated trial, Kollar-Kotelly ordered more briefing, scheduled out through November.

MINUTE ORDER as to NICHOLAS KENNEDY (1): Yesterday, October 23, 2024, the Court held a stipulated trial on Count Two of the 63 Second Superseding Indictment (Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2). After reviewing the stipulated facts with Defendant, the Court discussed with the parties the 82 Proposed Jury Instructions. During that discussion, it became clear that the parties agreed on the elements of a Section 1512(c)(2) offense but disagreed about the application of those elements to Defendant’s stipulated conduct. The Court has not yet reached a verdict. The Court ORDERS the Government to file proposed findings of fact and conclusions of law on or before NOVEMBER 1, 2024. Defendant shall respond on or before NOVEMBER 15, 2024. And the Government shall reply, if necessary, on or before NOVEMBER 25, 2024. Signed by Judge Colleen Kollar-Kotelly on 10/24/2024. (lcckk3) (Entered: 10/24/2024)

This briefing will go to the core of DOJ’s theory via which they think they can hold people accountable for trying to disrupt the counting of actual vote certifications.

Still, the most likely explanation is that Loeb has earned a break.

What I’m wondering, given the silence about the Proud Boys in Jack Smith’s immunity briefing, is what these movements mean for any implication of the militia into a case for Trump or his closest allies (the cases Loeb has overseen treated both Alex Jones and Roger Stone as unindicted co-conspirators).

I speculated earlier this month that we might see something implicating the Proud Boys after the election.

Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]

But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.

To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.

In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484

But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.

Maybe that’s right.

Or maybe, with Fischer, John Roberts effectively wrote people like Jones and Stone a Get out of jail free card. For years, I’ve been laying out how Alex Jones and Roger Stone are right there in a networked conspiracy between the Proud Boys and Oath Keepers and Donald Trump.

But that was envisioned — I believe DOJ envisioned it, starting years ago — as a conspiracy built around obstruction charges, 18 USC 1512(k).

Given Fischer’s new evidentiary component, I’m not sure whether you could sustain charges for obstruction against Jones and Stone.

There’s at least one clue that DOJ doubts it can sustain such charges against people further from the action. In the SoCal Conspiracy, in which some anti-vaxers and Three Percenters joined up to plan their travel to January 6, DOJ just filed an information for Morton Irvine Smith, for just trespassing.

Smith funded much of the conspiring. He appeared to be involved in earlier plotting, going back to the MAGA March in December 2020. And DOJ imaged his computer years ago, back in June 2021.

To be sure, since he was charged via information, it’s clear that Smith has negotiated these charges. But particularly as the obstruction charges against the guys he funded, notably Alan Hostetter, have been put at risk with Fischer, I wonder whether DOJ has simply given up trying to hold Smith to any more serious charges.

It may be we’ll see some new Proud Boy developments after the election. But it’s just as likely that John Roberts’ revision of 18 USC 1512(c)(2) made it difficult if not impossible to hold key players between the crime scene and the Willard accountable.

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

Trump cosplayed this weekend before his Nazi love fest in Madison Square Garden, using a photo of himself in his McDonald’s costume in a social media post:

Funny how he depicts Biden in real presidential attire, as if Trump’s unconscious recognizes he is not presidential while Biden is.

(Trump also claimed unearned credit for repairing ice cream equipment resolved wholly without his participation in any way.)

He cosplayed once again today, pretending to drive a truck:

It’s still just dress up, though.

Trump is playing around, including using his image like a child would have used a paper doll decades ago. Pop Mr. Trump in a McDonald’s drive-thru, add his nemesis Mr. Biden with an ice cream because Mr. Biden likes ice cream, get it? What a good job, Donnie. What will you do with a photo of you “driving” a truck?

Meanwhile, reality grinds on, chewing up real lives and crushing real futures.

Trump’s responses to reality remain as flat and shallow as his playtime.

~ ~ ~

I had a moment recently, before Trump indulged in his McDonald’s cosplay fixation. I was triggered deeply as I packed up to leave my classroom; I made it to my car where I managed to fend off a PTSD panic attack.

Yes, I’m back in school. I’m pursuing another degree as part of a personal goal. I’m on campus in class several times a week. It’s a little awkward at times being older than the rest of the students, half of which are freshmen, not to mention being older than the instructors.

At my age the experience is also a solid kick in the head. Two months into class I’ve realized that I’ve forgotten so much about my own experience beginning college. My fellow students bring it all back.

I had forgotten how goddamned poor I was then. Some weeks I just barely scraped by living on dimes obtained by scavenging soft drink cans and turning them it for the deposit money. Thank goodness Michigan has had a bottle deposit law for decades or it would have been even worse.

A classmate reminded me unintentionally of the experience when they mentioned they would have to see if they could afford the necessary supplies for our next class segment after they got their next paycheck.

In contrast, as soon as I had received an email that I was approved for this class I’d ordered everything I needed all at once. I order double of a few items, didn’t even give the cost a second thought.

It wasn’t always this way. Back in 1978 when I was starving student I’d have had to ask for extra hours at work or find a way to defer a payment in order to purchase something required for a class.

Eventually I had to leave school because I couldn’t afford tuition and fees. In the big picture it all worked out – I landed jobs with companies that paid my tuition – but my late teens and early twenties were really grim. The Reagan years I’d rather not recall at all, thank you.

It was incredibly difficult to make ends meet on 20-36 hours a week at minimum wage jobs. I was fortunate I never had to work in fast food though I’d applied for my share of those jobs. I dreaded the possibility I’d not only get shitty hours I couldn’t count on from week to week, but I might come home smelling like catsup-mustard-onions-pickles with a coating of fryer grease.

A close friend who worked for a major fast food chain couldn’t get the odor out of their hair and skin; it embedded itself in any synthetic fabric. They smelled like a Wendy’s burger for as long as they worked there. Kamala Harris knows what this is like, the feeling of being branded by a necessary but short-term low-wage job.

Cosplayers don’t have to deal with that reality.

Because I worked in retail for a decade, my uniform was business professional with nylons and heels. No apron or hairnet required but 4 to 8 hours on your feet in 2-3 inch heels isn’t fun. It screws with your feet and posture for years afterward.

(Heel spurs, Donnie? Hah. What a pussy.)

Doing stock work in this kind of attire is also distinctly unpleasant, humping bulky and heavy inventory from boxes in the back room to the front of the store to hang on rods you may have just finished waxing, also part of the job while wearing a smile for customers.

I dreaded the stock work because I might ruin a pair of pantyhose. They’d cost me a couple hours’ pay to replace before my next shift. Don’t snap off a heel or break a shoe strap because that’s a week’s pay to repair and more to replace.

Gods help me if the vehicle I relied on – not mine as I couldn’t afford payments, plates, insurance – needed repairs, the cost of which I’d have to help absorb.

If you’re cosplaying you don’t have to worry about little financial set backs like these.

Thankfully I was healthy then. I also didn’t have to worry about my family or daycare at the time.

Unfortunately my classmate not only has to count pennies to afford the next class segment, but their remaining parent is suffering from a life-threatening illness. You know where much of the household’s income is going – right into Big Pharma’s pockets.

That detail isn’t included in the cosplay kit.

Cosplaying a minimum wage worker’s job is simply not the same as actually doing their job, not the same as living their life.

It’s so fucking hard in reality that I “forgot” about it decades later, blocking the unpleasantness of hardship. I also know that it’s considerably more difficult now than it was back then. Health care alone is a nightmare, even with Affordable Care Act coverage.

~ ~ ~

Math is also not part of the cosplayer’s kit.

In reality, the math is inescapable.

There’s no escaping the fact the federal minimum wage is $7.25 per hour and it’s been that since 2009. Minimum tipped wage is $2.13 per hour provided base wage and tips total $7.25 per hour.

States’ minimum wage may be more, but 21 states’ minimum wages are also $7.25 per hour.

Doesn’t matter if individual state’s cost of living index is higher or lower than the average.

Which means the expenses have steadily outstripped wages for years.

Minimum wage jobs are rarely full-time because employers who need cheap labor also don’t want to pay unemployment. The most part-time workers can expect is 36 hours a week and probably not regularly to avoid the appearance of full-time work.

Most will average 20-36 hours a week.

Which means gross pay is somewhere between $145 and $261 a week, or $7540 to $13572 a year.

Now take those numbers and analyze them using NerdWallet’s average monthly expenses by category:

The average expenditures among all consumer units totaled $77,280 annually. That’s up 5.9% from 2022.

Average monthly expenses for housing:
Average expenses for housing totaled $25,436 annually. That works out to $2,120 per month.

Average monthly expenses for transportation:
$13,174 annually. That works out to $1,098 per month.

Average monthly expenses for food:
$9,985 annually. That works out to $832 per month.

Average monthly expenses for personal insurance and pensions:
$9,556 annually. That works out to $796 per month.

Average monthly expenses for entertainment:
$3,635 annually. That works out to $302 per month.

Average. Monthly. Expenses. There’s no way a single person working 20-36 hours a week for federal minimum wage comes close to covering half of these expenses, even if insurance, pensions, and entertainment are completely removed from the calculations.

BLS Employment Cost Index for July 31, 2024 indicates wages have increased, but whose wages and where?

… Wages and salaries increased 4.2 percent for the 12-month period ending in June 2024 and increased 4.6 percent for the 12-month period ending in June 2023. Benefit costs increased 3.8 percent over the year and increased 4.2 percent for the 12-month period ending in June 2023. …

Chances are good these increases still don’t make a dent anywhere in the U.S. when benefits also increased and corporations continue to gouge consumers on top of it to make record profits.

Cosplayer TFG may actually know a little bit about this but from the perspective of a landlord and an employer. He’s cheated renters in his lifetime violating the Fair Housing Act and hired undocumented workers repeatedly because he won’t pay a living or legally-mandated wage to documented workers.

No cosplay required – the guy who’s familiar with this bit of economics wears a blue suit and red tie when he’s not wearing a white golf shirt and khaki golf slacks.

He wants to do this kind of cheating on housing and wages all the time to every American.

No costume required to be an asshole.

~ ~ ~

Let me be more direct: Cosplayer TFG has avoided answering questions about increasing the minimum wage, failing to respect working Americans by offering a bullshit response:

Trump held a campaign photo op Sunday at a McDonald’s in swing-state Pennsylvania, where he was asked about raising the minimum wage.

“Well, I think this. These people work hard. They’re great,” the Republican nominee responded.

The vice president pounced on the remark, criticizing Trump on Monday by saying that she “absolutely” believed in raising the minimum wage to ensure that “hardworking Americans, whether they’re working at McDonald’s or anywhere else, should have at least the ability to be able to take care of their family.”

No wonder he hid behind his McDonald’s costume or climbed into another truck cab.

~ ~ ~

I wish I could assure my classmate that there’s an end to this hardship in sight soon, that there will be elected officials who will work as hard as they do to ensure they get the opportunities they need and a lifeline when necessary.

But that’s on all of you who have yet to vote and aren’t in my class this term.

We aren’t going back. Do something and make this better. Vote for someone who understands what it’s going to take and is willing to do it. Vote for the candidates down ticket who’ll help her deliver.

Vote for somebody who isn’t going to cosplay at working while being a fascist slacker in reality.

Somewhere, I have a half-finished post about the way that Bill Barr refused to cooperate with three different Inspector General Reports reviewing his actions — his actions during May and June 2020 protests in DC, his intervention in the Roger Stone sentencing, and his decision to seek out a voter fraud cause he could publicize. (There’s at least one more investigation, probably the one into subpoenas targeting journalists and Congress, that is ongoing.)

I hope to return to that if we still have a democracy next week.

But I want to review the third of these, because it hangs over DOJ’s ongoing investigation of a number of suspect election crimes, including the arson targeting ballot drop boxes in Oregon and Washington earlier this week.

As you may recall, someone — who turned out to be a mentally disabled man — threw away nine mail-in ballots in Luzerne County, PA in September 2020. The US Attorney for Middle District of Pennsylvania in Scranton, David Freed, big-footed into the investigation, in part (the IG Report discovered) because Bill Barr was looking for some case to talk about. Barr told Trump about the case and Trump made public comment.

…These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. They were Trump ballots—eight ballots in an office yesterday in—but in a certain state and they were—they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen. This is what’s going to happen, and we’re investigating that. It’s a terrible thing that’s going on with these ballots. Who’s sending them, where are they sending them, where are they going, what areas are they going to, what areas are they not going to?… When they get there, who’s going to take care of them? So, when we find eight ballots, that’s emblematic of thousands of locations perhaps.

After which, Barr and Freed decided to release a public comment about the investigation, including that all nine of the discarded ballots had been cast for Trump (that turned out to be inaccurate; Freed issued a corrected statement days later). By the time Freed made that statement, it was pretty clear they weren’t going to charge the man involved; nevertheless, it wasn’t until the following January before the US Attorney’s Office revealed there would be no charges. Nevertheless, Freed also sent a letter to the county providing still more details from the investigation.

Barr refused to be interviewed for the Inspector General investigation, though his attorney kept providing new statements that didn’t answer all the questions about his behavior (one of my favorite Barr comments is that of course he didn’t advertise this case for political reasons because that would be inconsistent with his public statement on December 1 that there had been no decisive voter fraud). Barr spun the entire thing as an effort to reassure people.

Barr told the OIG in his letter to the Inspector General that he “favored and authorized putting out information along the lines of [MDPA’s] September 24 statement,” and Freed told the OIG that Barr specifically approved inclusion of investigative details in the statement, including the fact that “all nine ballots were cast for presidential candidate Donald Trump.” Barr stated in his letter that he favored including “the basic facts that prompted the investigation” in the MDPA statement as a way to quell public concerns about election integrity. Specifically, Barr stated: “Due to the involvement of local officials and county witnesses, I thought that further revelations of information about the incident were likely, potentially could come at any time, and could be mistaken.” Barr further wrote:

…I was concerned that the vagueness of the local officials’ statement, coupled with the Department’s silence, was contributing to undue speculation and potentially unsettling the public more than necessary about the election’s integrity. I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation. Among other things, doing so would help dispel needless mystery and speculation by delimiting the nature and scope of the issue being investigated.

Barr’s letter went on to assert that a public statement would “have a salutary deterrent effect” and serve as “a reminder to election administrators” of their responsibility to safeguard election integrity. Barr ultimately stated that he had determined, in his judgment, that “a strategy of remaining silent” about details of the Luzerne County ballot investigation “would have ended up doing more harm to the public interest than getting out in front with a more forthcoming statement in the first place.”76 Freed, for his part, told us that he believed releasing details about the investigation was important because it was the “best way” to keep the public officials running these elections “honest,” and because it would alert military voters that their ballots may have been discarded.77

In comments submitted to the OIG after reviewing a draft of this report, Barr stated that it was important at the outset to reassure the public “that there was a legitimate basis for the federal government to take over the investigation.” Barr continued: “The key fact that justified the federal government taking over the investigation was that only Trump ballots—no Biden ballots—had been found discarded.” Barr added that this fact was a “red flag” for investigators and “suggested that the discarding of ballots was not random or accidental, but potentially intentional.” In comments submitted after reviewing a draft of this report, Freed’s counsel echoed this sentiment, stating: “Had the statement not included [that the discarded ballots were all for President Trump], it would have omitted the operative fact that provided the predicate for federal involvement and would have left the public completely confused.” We found that this concern expressed by both Barr and Freed about federal involvement could just as easily have been satisfied by stating that all of the ballots were for the same presidential candidate, rather than identifying a particular candidate, which would have avoided injecting partisan considerations into a public statement by the Department. Moreover, the MDPA statement includes no information about the choices of the voters in the district’s congressional race, which would have been equally relevant to establish federal jurisdiction in the matter.

76 We were struck by the similarity between the justifications presented here and the explanation former FBI Director James Comey gave during our review of his conduct in advance of the 2016 election. In explaining why he announced to Congress that the FBI had resumed its investigation of then presidential candidate Hillary Clinton less than 2 weeks before the 2016 election, Comey told the OIG that he had determined, in his own judgment, that “there was a powerful public interest” in commenting on the Clinton email investigation, and that it would have been “catastrophic” to the Department and the FBI to not do so. DOJ OIG, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Oversight and Review Division Report 18-04 (June 2018), https://oig.justice.gov/reports/review-various-actions-federal-bureau-investigation-and-department-justiceadvance-2016, 365.

77 Neither Barr nor Freed, nor any witness we spoke to, suggested that § 1-7.400(C)’s second exception—permitting comment on investigations when “release of information is necessary to protect the public safety”—applied here.

Ultimately, DOJ IG found the whole thing to be wildly inappropriate, but because of the discretion afford the Attorney General to share information with the President and make public comment, it said that it could not find that Barr had engaged in misconduct; it did find that Freed had engaged in misconduct, both by blabbing about an ongoing investigation and doing so without consulting with Public Integrity before doing so.

DOJ referred both Barr and Freed to the Office of Special Counsel for a review of whether this was a Hatch Act violation.

We concluded that the MDPA statement did not comply with the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed; however, we did not find that either Barr or Freed committed misconduct because of ambiguity as to the applicability of Barr’s authority to approve the release of the statement pursuant to 28 C.F.R. § 50.2(b)(9). We found that Freed violated the DOJ policy prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials. We found that Freed also violated DOJ policies requiring employees to consult with PIN before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI. Finally, while we were troubled that Barr relayed to President Trump investigative facts about the Luzerne County matter, we concluded that Barr’s decision to provide that information to President Trump did not violate DOJ’s White House communications policy because the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President when a communication is permissible under the policy, as we found was the case here.

We make a number of recommendations in this report. First, as DOJ policy does not address what information Department personnel may include in a statement that is determined to be necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety, we recommend that the Department revise this policy to require that the information contained in a statement released pursuant to JM 1-7.400(C) be reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety. Second, we recommend that the Department make clear whether the Justice Manual’s Confidentiality and Media Contacts Policy, Justice Manual § 1-7.000, applies to the Attorney General. Third, we recommend that the Department clarify its policies to address whether any of the provisions of 28 C.F.R. § 50.2 remain Department policy in light of the existence of the Confidentiality and Media Contacts Policy contained in the Justice Manual. Fourth, if 28 C.F.R. § 50.2(b)(9) remains valid Department policy, we recommend that the Department require that requests to the Attorney General or Deputy Attorney General for approval to release information otherwise prohibited from disclosure and any approval to release such information pursuant to § 50.2(b)(9) be documented. Lastly, we recommend that the Department consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.

As noted above, the federal Hatch Act prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”89 The U.S. Office of Special Counsel has sole jurisdiction to investigate Hatch Act violations.90 Because the circumstances described in this report raise a question as to whether these former Department officials’ actions violated the Hatch Act, we are referring our findings to the Office of Special Counsel for its review and determination of that issue.

It’s not entirely clear how many of DOJ IG’s recommendations DOJ has implemented since this report was released in July.

But one way or another, the conduct described in this report would look indistinguishable from the investigations currently ongoing. That is, weighing in to talk about whether specific election crimes were being committed by Trump or Harris supporters (or none of the above, as was the case in Luzerne and may be the case if the Northwest arsonist really is motivated by Gaza, as the incendiary devices imply) would be deemed a violation of DOJ guidelines.

DOJ is only supposed to make comments to reassure people that something is under investigation. DOJ has done so, formally, in Washington.

“The US Attorney’s Office and the FBI want to assure our communities that we are working closely and expeditiously together to investigate the two incendiary fires at the ballot boxes in Vancouver, Washington, and the one in Portland, Oregon, and will work to hold whoever is responsible fully accountable,” US Attorney Tessa M. Gorman and Greg Austin, acting special agent in charge of the FBI’s Seattle office said in a statement Tuesday.

But you are not going to hear more than that unless and until DOJ charges someone.

On September 4, at the very press conference where he rolled out the indictment against the useful idiots being secretly paid by RT, on the very last day before the election blackout would go into place, Merrick Garland discussed the Election Threats Task Force that Lisa Monaco put into place back in June 2021.

DOJ has made statements about specific crimes — including the one Elon Musk is suspected of committing, as well as more general efforts to prosecute Election Fraud.

I promise you, that’s all you’re going to get unless charges are filed.

Thus far, four Trump supporters have been arrested for cheating.

There’s Danielle Christine Miller, charged with two felonies for casting a vote in her dead mother’s name for Trump.

There’s Larry Lee Savage Jr, who stole two ballots during a test run of voting machines in Indiana.

There’s Val Biancaniello, who was arrested for disorderly conduct after allegedly harassing voters in a line in Media, PA.

And there’s Caleb James Williams, who harassed early voters in Neptune Beach, FL waving a machete.

Update: Jeffrey Michael Kelly, who was arrested last week for shooting up some Democratic offices in AZ, was indicted on terrorism charges today.

In addition, an unaffiliated racist, Nicholas Farley, was arrested in West Palm Beach for yelling racial and antisemitic slurs at voters (I’m not counting him as a Trump supporter because he was intimidating Republican voters too).

Trump, predictably, is claiming that others are cheating.

And the Republicans on the Supreme Court permitted Glenn Youngkin to continue purging voters, including some citizens, from voting rolls in violation of the National Voter Registration Act. [Corrected the law in question.]

Update: A Chinese Green Card holder who is a U Michigan student has also been charged, for illegally voting.

As always happens when people who don’t bother to check the public record get afraid, folks are complaining about Merrick Garland again, both that they didn’t notice the number of times Garland explained publicly that back in June 2021 DOJ had set up a special Election Task Force to prepare for this moment, and to complain that (they say) Garland hasn’t charged Donald Trump.

I was working on a timeline already when Politico’s two year effort to get the DC District Court to unseal grand jury proceedings bore fruit yesterday. Kyle Cheney has a story describing how the documents he liberated show both Beryl Howell and her successor as Chief Judge, James Boasberg, kept swatting back at Trump’s efforts to delay precisely because of the upcoming election.

More than 18 months ago, as Donald Trump sought to delay several high-profile witness’ testimony to a grand jury investigating his effort to subvert the 2020 election, Washington’s top federal district judge sensed a potential calamity.

“The special counsel’s investigation is moving quickly. There is an imperative that it moves quickly particularly so as not to interfere with the 2024 election cycle,” Chief Judge James Boasberg said on April 3, 2023, according to a newly unsealed transcript of the secret proceeding. “So when the former President’s pleading says that there will be a nominal impact from a delay, I think that is a vast understatement, that there would be a serious and deleterious impact from a delay.”

Boasberg’s warning in the early stages of special counsel Jack Smith’s investigation of the former president now rings prescient. A series of delays engineered by Trump, most notably an eight-month freeze while the Supreme Court considered his claim to be immune from the charges altogether, have caused the criminal proceedings to collide with the 2024 election cycle — and made it impossible for Trump to stand trial on the most serious charges he faces before Election Day.

The documents also confirm dates that, just yesterday, anti-Garland whingers claimed I made up. The fight over executive privilege started with a June 15, 2022 subpoena (probably to Greg Jacob and Marc Short) and continued through the next April, when Jack Smith — having come on after the precedents on executive privilege had already been set — got Mike Pence’s testimony on April 27.

Here’s the timeline mapped by the documents Politico liberated:

June 15, 2022: Subpoena to two officials (possibly Jacob and Short)

September 28, 2022: Order and opinion requiring testimony from two officials (possibly Jacob and Short)

October 6, 2022: Order and opinion denying stay of decision

November 19, 2022: Order and opinion requiring testimony (probably the two Pats, Cipollone and Philbin)

December 18, 2022: Order and opinion denying stay

January 23, 2022: Order and opinion extending appeal

December 9, 2022: Order and opinion requiring testimony (possibly Eric Hershmann, given description of his emails demanding written instructions)

January 10, 2023: Order and opinion denying stay

March 15, 2023: Order and opinion requiring testimony (this is the omnibus order covering eight people — see redacted list on page 2 — including Mark Meadows, Stephen Miller, and Dan Scavino)

March 25, 2023: Opinion requiring testimony, probably involving Mike Pence

April 3, 2023: Transcript of hearing, probably involving Mike Pence

April 10, 2023: Transcript of hearing, probably involving Mike Pence