2024 Presidential Election Archives - Page 9 of 63

Will Aileen Cannon Succeed at Suppressing Hunter Biden Dick Pic Sniffing?

January 9, 2025/83 Comments/in 2024 Presidential Election, emptywheel, Hunter Biden, January 6 Insurrection /by emptywheel

I had a dream last night that the documents side of the Jack Smith report, which is the subject of a heated legal battle right now, revealed that Smith developed evidence that Trump had given documents he took to the Saudis in the context of several major business deals. To be clear: It was a dream! I don’t think that’s the most likely content of the report.

But the report is sure to be pretty damning. I’m virtually certain the report shows that aspiring FBI Director Kash Patel lied to help Trump retain classified documents. Senior White House counselor designee Stan Woodward played a role in giving Patel and Walt Nauta legal protection to, themselves, run legal interference for Trump (though there’s absolutely no reason to believe the report will say Woodward’s actions were unethical). Questions remain about whether Trump succeeded in retaining and disposing of still-unidentified documents. And the report may explain the sensitivities of the documents and the mitigation the Intelligence Community had to do as a result.

That said, my dream convinced me — against my better judgment — to explain what I think DOJ is trying to do with this legal fight, because it conveys the outer limits of potential scandal that could be buried in that document. Just the stuff implicating Kash alone is damning, but it could be far worse.

I want to talk about the government response — in the person of the SDFL US Attorney’s Office and DOJ’s Appellate team, because Jack Smith has already withdrawn from the 11th Circuit — to Walt Nauta and Carlos De Oliveira’s bid to enjoin the release of the stolen documents half of the Jack Smith report.

Procedurally, here is what happened in the 11th Circuit (I may or may not go back to fill in Aileen Cannon’s side, but as you can see, she tried to bigfoot into an ongoing matter before the 11th Circuit, which may have pissed off the 11th).

January 7, 9:02 AM, 11th Circuit: Emergency motion to bar release. “Garland is certain to release the report and it will impugn on our right to a free trial and the report cannot be released lawfully, because Jack Smith was unconstitutionally appointed and Trump is President-elect.”

January 7, 1:13PM, 11th Circuit: Notice. DOJ shall submit a response by 10AM on January 8.

January 7, 1:23PM, 11th Circuit: USDC Order. Aileen Cannon’s order enjoining the release of everything docketed at 11th Circuit.

January 7, 1:28PM, 11th Circuit: Notice of appearance. DOJ Appellate lawyer Mark Freeman files an appearance.

January 7, 3:18PM, 11th Circuit: Supplemental. “Here’s the order that already got filed in this docket. We’re, uh, filing it so it has a procedural purpose on the docket.”

January 8, 9:49AM, 11th Circuit: Response. “The part of the report pertaining to Nauta and De Oliveira won’t be released so they have no standing.”

January 8, 11:28AM, 11th Circuit: Notice of intention to reply. “We’re going to reply by 10AM on Thursday.”

January 8, 12:22PM, 11th Circuit: Notice. “No, you’ve got until 5PM today to respond.”

January 8, 5:06PM, 11th Circuit: Reply. “What if it leaks?”

January 8, 10:52PM, 11th Circuit: Trump Amicus. “Block both volumes!!”

The government response effectively argues the following: There are two volumes to the report, Volume One, which covers Trump’s attempted coup, and Volume Two, which covers the documents case. Walt Nauta and Carlos De Oliveira are not mentioned in Volume One, and so they have no interest in it and so no legal standing to try to block it.

Because of the ongoing case against Nauta and De Oliveira (the Response explains), Merrick Garland has decided that no part of Volume Two will be released. It will, instead, only be made available for in camera review to the House and Senate Judiciary Chairs and Ranking Members at their request, with their agreement that no information from it will be publicly released.

Nauta and De Oliveira have no authority to affect the release of Volume One. Not only did Judge Cannon’s original order deeming the Jack Smith appointment unconstitutional limit itself to the case before her (that is, not even the one in DC), but she cannot have the authority to deem all Special Counsels unlawful.

Please specify that this is the last word, unless the 11th Circuit en banc or the Supreme Court tries to get involved.

Narrow the legal dispute

I don’t pretend any of this is satisfying to people who want both reports. But here’s the legal logic to it.

First, because of the the posture of this appeal, the entire documents side of the case is in uncertain status. When Judge Cannon ruled Jack Smith’s appointment was unconstitutional, she said that everything Smith had done since his appointment had to be unwound. So unless the report only covered stuff before that point — that is, through the document seizure, but during which Cannon’s injunction on the investigation largely prevented any interviews of people like Nauta — then it remains in limbo awaiting the 11th Circuit decision on Cannon’s ruling. So it’s not just that there’s a pending case against Nauta and De Oliveira, it’s also that the entire legal status of the work done after November 18, 2022, which makes up the bulk of the obstruction investigation.

So whatever Garland (or Brad Weinsheimer, the top nonpartisan lawyer at DOJ, whom I’m certain is involved) thinks about the merit of releasing the report, for the purposes of this dispute, he is trying to eliminate any standing anyone has to interfere with the release of the January 6 volume. (Side note: it was short-sighted for Jack Smith to release these as volumes to the same report, rather than separate free-standing reports.) Nothing Garland has authorized with the volume pertaining to Nauta and DeOliveira can affect their hypothetical right to a fair trial they’ll never face, because nothing from the report will become public in such a way that potential jurors would see it. That is, sacrifice immediate publication of the documents volume in an attempt to release the January 6 one.

Create a dead man’s switch

Garland has agreed with Jack Smith that Volume Two should not be released so long as the Nauta and De Oliveira cases are pending, but that suggests once they no longer are pending, the information could be released.

Attorney General Garland is committed to ensuring the integrity of the Department’s criminal prosecutions. Considering the risk of prejudice to defendants Nauta’s and De Oliveira’s criminal case, the Attorney General has agreed with the Special Counsel’s recommendation that Volume Two of the Final Report should not be publicly released while those cases remain pending. See 28 C.F.R. § 600.9(c). There is therefore no risk of prejudice to defendants and no basis for an injunction against the Attorney General.

[snip]

The Attorney General’s determination not to authorize the public release of Volume Two fully addresses the harms that defendants seek to avoid in their emergency motion. As noted, consistent with 28 C.F.R. 600.9(a), the Attorney General intends to make Volume Two of the Final Report available for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees, pursuant to restrictions to protect confidentiality. Even then, however, consistent with legal requirements, the Department will redact grand jury information protected by Rule 6(e) as well as information sealed by court order from the version made available in camera for congressional review. Defendants have no colorable claim to prejudice from these carefully circumscribed in camera disclosures.

The filing leaves unsaid what happens when the cases against them go away, which will happen either because the 11th Circuit affirms Cannon’s ruling that Jack Smith was unlawfully appointed, Trump’s DOJ withdraws from the appeal, or Trump simply pardons his co-conspirators. Everyone knows they will go away, but once they do, then in theory Volume Two could come out.

Everyone has made sure the report could come out in current form; because of the redactions they’ve done, no grand jury material would be implicated, nor any information sealed by Cannon.

This creates an effective dead man’s switch tied to the Nauta and De Oliveira prosecution. Once that case goes away, Jamie Raskin and Dick Durbin would be free to talk about it. And, it’s possible, there’s a standing order at DOJ that it will be released publicly.

Of course, either the landing team at DOJ or Pam Bondi, once she’s confirmed, can and undoubtedly would override any such order. Assuming they can find every report at DOJ or they disseminate an order forbidding its release sufficiently broadly to cover all potential distributions within DOJ, they can and likely will succeed in preventing the release.

I’m not saying we’ll get the report, which is one reason I hesitated to even post this.

At that point, though, whoever orders the report’s suppression would, in effect, be suppressing damning information about — at least — Kash Patel. And Trump. And (with my clear caveat that there’s no reason to believe Woodward did anything unethical), Woodward, who one of these days should expect nomination as a judge.

And, if Jamie Raskin and Dick Durbin get to review it, they would know that.

In other words, if, by taking any legal dispute off the table, Garland succeeds in letting Raskin and Durbin read the report, it’ll create a headache.

Not to mention, the existence of the report will likely form a key part of Jim Jordan and Kash Patel’s efforts to retaliate against Jay Bratt and Jack Smith. And it may create ethical obligations to recuse from such matters for everyone but Bondi.

Again, I’m not saying this will work. I’m saying it may cause headaches.

Implicate the Hunter Biden report

That brings us to the second thing that Garland/Weinsheimer have done to muddle these legal issues.

As I’ve said repeatedly, David Weiss was appointed under the same legal authority as Jack Smith. If Jack Smith’s appointment was unconstitutional, then Weiss’ was, too, especially with respect to Hunter Biden’s Los Angeles prosecution and even more with respect to Alexander Smirnov’s prosecution. Yet several DC judges have rejected that claim.

And we’re about to get a report from Weiss, too, one that remains unmentioned, at least specifically, in this legal dispute.

After Joe pardoned Hunter, Weiss got Smirnov to agree to a baffling above-guidelines sentence plea deal, with the caveat that he be sentenced almost immediately; yesterday, Judge Otis Wright sentenced him to six years. I expect that Weiss has already completed his report, with the expectation it’ll be released along with Trump ones on Friday. (I’ve been guessing this would all go down on January 10 for some time; looks like a pretty prescient guess.)

So when DOJ repeatedly mentions the impossibility that Cannon’s order could enjoin all Special Counsels nationwide, they are implicitly including David Weiss, even if only Jack Smith’s DC report gets mentioned.

Defendants also reiterate their claim that the Special Counsel was unlawfully appointed. The United States has thoroughly rebutted that contention in its merits briefs in this appeal. But in any event, the argument is irrelevant to the only action here at issue—the handling of the Final Report by the Attorney General. The district court, in dismissing the indictments against defendants, did not purport to enjoin the operations of the Special Counsel nationwide, nor could it have properly done so in this criminal case. Accordingly, as required by Department of Justice regulations, the Special Counsel duly prepared and transmitted his confidential Final Report to the Attorney General yesterday (as permitted by the district court’s recent order). 28 C.F.R. § 600.8(c) (“Closing documentation.”). What defendants now ask this Court to enjoin is not any action by the Special Counsel, but the Attorney General’s authority to decide whether to make such a report public. See id. § 600.9(c); 28 U.S.C. § 509. As noted above and discussed in more detail below, the Attorney General determined that he will not make a public release of Volume Two while defendants’ cases remain pending. That should be the end of the matter.

[snip]

Although the district court in this case concluded that the Special Counsel was not properly appointed and ordered that the indictment be dismissed as a remedy, the district court did not purport to enjoin the ongoing operations of the Special Counsel’s Office nationwide. This is a criminal case, and the district court limited its remedy to dismissal of the indictment. See Dkt. 672 at 93. The court did not purport to issue—and it could not properly have issued—a nationwide injunction barring the Special Counsel from discharging the functions of his office in Washington, D.C. or elsewhere.

Indeed, while defendants argue that the order appointing the Special Counsel became “void” upon issuance of the district court’s judgment in this case, Mot. 14, the district court was clear that its order was “confined to this proceeding,” see Dkt. 672 at 93. —i.e., to this criminal prosecution. The district court never barred the Special Counsel from performing other duties, including the preparation of the Final Report. Had it purported to do so, the district court would have had to grapple with the fact that the D.C. Circuit—whose law governs Department headquarters and the Special Counsel’s offices where the Final Report was prepared—has rejected the same Appointments Clause theory that the district court accepted. See, e.g., In re Grand Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019). The district court with responsibility for the Election Case did so as well.

On paper, at least, Nauta and De Oliveira have no legal dispute, and Trump’s amicus demanding that the DC volume be suppressed, too, has even less.

But who knows? Trump’s dealing with a set of judges and justices who could care less about legal standing if it means protecting him.

And that’s why the Hunter Biden report matters.

If the 11th Circuit issues an order enjoining all currently pending Special Counsel reports, it would have the effect of enjoining the Hunter Biden one, as well. And then, when Pam Bondi comes in and tries to suppress the Trump one, any release of the Hunter Biden one (which I expect to assign a specific time and cost value of the pardon to Hunter), will amount to an ethical problem, a double standard serving to protect Trump.

Again, I’m not saying that any of this will work. I’m saying that if and when it doesn’t, it has the ability create a big ethical and potentially legal headache for Trump’s wildly conflicted DOJ just at the start of their tenure.

Update (h/t Lemon Slayer): Garland wrote the Chairs and Ranking Members about the completion of the report and the delay caused by Cannon. This language sure sounds like Garland has intended his order will release the report when the investigation into Nauta and De Oliveira is killed.

Consistent with local court rules and Department policy, and to avoid any risk of prejudice to defendants Waltine Nauta and Carlos De Oliveira, whose criminal cases remain pending, I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing. Therefore, when permitted to do so by the court, I intend to make available to you for in can1era review Volume Two of the Report upon your request and agreement not to release any information from Volume Two publicly. I have determined that once those criminal proceedings have concluded, releasing Volume Two of the Report to you and to the public would also be in the public interest, consistent with law and Department policy.

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Why and How to Hold John Roberts Accountable

January 8, 2025/155 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

I want to explain why and how to hold John Roberts accountable for Trump’s corruption. It is based on the following presumptions.

Blaming Merrick Garland for Trump’s reelection has required inventing facts about the timeline, which is why I argue it is conspiratorial thinking.
Because of how SCOTUS rewrote the Constitution, no counterfactual gets Trump disqualified before the election, and probably doesn’t get him to trial.
This was a political failure that started well before January 6.

So one reason I advocate focusing on accountability for John Roberts is because he and his colleagues, in fact, are responsible. They intervened to ensure the leader of their party would evade accountability. And so they enabled everything that comes next.

And Trump has responded by flouting all concern about legal accountability.

He set up a kickback system for his inauguration, the proceeds of which will go to his own pocket.
Trump boasted of his expanded business deals with the Saudis.
He hailed $20 billion in investments from the same guys whose payments Alexander Smirnov was hiding on his taxes.

This is corruption in plain sight. The corruption is the obvious result of Roberts’ grant of immunity. So I propose to track it, name it, make John Roberts own it.

I’m not arguing that doing so will immediately make John Roberts regret what he has done. While Roberts has shown the ability to moderate off his prior shitty decisions, he’s pretty wedded to making corruption legal.

But one of the only short-term guardrails on Trump will be the things the Senate and SCOTUS choose to place on him. They’ve failed every other time they could reverse Trump’s damage, but in his first term, they did push back on his worst instincts. So by at least making the effects of the immunity ruling visible, you increase the chance that Roberts might do so.

The same is true of the violence that Trump will stoke. Roberts doesn’t want to own that. He does.

There’s good reason to go through this exercise, repetitively, insistently, that doesn’t invest hope that it’ll somehow convince Roberts.

MAGAt has spent years building their villain: migrants and trans people.

Defenders of democracy have done a far poorer job of doing the same — so much so that MAGAts have also projected a false claim of corruption onto the Bidens, transferring it from themselves.

But it’s time that we made corruption — and the Republican-picked judges that enabled it — the villain. We need to explain the world, and the explanation really is corruption, not migrants.

And if we do so from the start, with discipline, with repetition, then when Trump’s corruption ends up breaking things, causing catastrophe, that explanation will be ready at hand. I can’t tell you which of Trump’s corrupt schemes will do catastrophic damage first. Possibly his embrace of crypto currency, or maybe the dodgy types who set up his personal piggy banks will do something so shocking that even Pam Bondi’s DOJ can’t look the other way. But when Trump’s corruption causes catastrophe — and it’s a matter of when, not if — we need to be ready to name it, rather than let them scapegoat migrants for Trump’s doing.

There’s one more reason I advocate this approach. As I tried to lay out here, polarization is Trump’s most useful weapon. Every time you present an issue in terms of loyalty to Trump or opposition to him, a great many people will choose Trump, even if only symbolically, because it’s the price of admission to GOP politics. So I advocate, as often as possible, to make someone else the figurehead for the problem.

Even in much of the conspiracy theorizing targeting Garland as the villain, I’ve seen people — smart people!! — who don’t understand the full shocking import of the immunity ruling. Reversing that oversight is a necessary step in reclaiming democracy.

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Lefty Pundits Absolve Their Own Failures on Holding Trump Accountable for His Coup

January 7, 2025/54 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel /by emptywheel

Let me start this post with a quiz.

Who are the two Trump associates newly treated as co-conspirators in the October 2024 immunity brief?

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Yes, Trump Is Trying to Prevent the Release of Jack Smith’s Report

January 7, 2025/76 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

As I have expected, Trump is trying to prevent the release of Jack Smith’s report. Walt Nauta and Carlos De Oliveira asked Judge Cannon (who, unless I’m mistaken it, does not retain jurisdiction over the case) to prevent Smith from releasing the volume pertaining to the stolen documents. And that filing includes a long screed from Todd Blanche asking Merrick Garland to fire Jack Smith so he doesn’t do what Special Counsels do.

Among the other things Blanche complains about is that the report includes details on people expected to be part of Trump’s Administration. And that Xitter stalled its response to a warrant.

Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.

As I keep mentioning, some of this will implicate Kash Patel. Hell, some of it may implicate Blanche himself.

As I have suggested, Garland may have been trying to release both this and the David Weiss report after Wednesday’s sentencing of Alexander Smirnov — so possibly the 10th. We’ll see whether Garland tries to get the documents part of the report out before Cannon tries to intervene.

Update: Jack Smith responded to the Florida motion.

The Special Counsel’s Office is working to finalize a two-volume confidential report to the Attorney General explaining the Special Counsel’s prosecution decisions. See 28 C.F.R. § 600.8(c). The Attorney General will decide whether any portion of the report should be released to the public. See 28 C.F.R. § 600.9(c). One volume of the report pertains to this case. The Attorney General has not yet determined how to handle the report volume pertaining to this case, about which the parties were conferring at the time the defendants filed the Motion, but the Department can commit that the Attorney General will not release that volume to the public, if he does at all, before Friday, January 10, 2025, at 10:00 a.m. The Special Counsel will not transmit that volume to the Attorney General before 1:00 p.m. on January 7, 2025. The Government will file a response to the defendants’ Motion no later than January 7, 2025, at 7:00 p.m.

Update: Aileen Cannon has enjoined DOJ from releasing the report at all. This wildly exceeds her authority and makes it more likely that it’ll come out under Presidential immunity.

Meanwhile, David Weiss plans to release a report under the same authority some time after Wednesday.

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On January 6

January 5, 2025/52 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

Aquilino Gonell had this to say in a NYT column.

I never wanted to be a whistle-blower or a troublemaker. I grew up poor in the Dominican Republic, came to this country legally at age 12 and became the first in my family to finish high school and college. I lived in Brooklyn, just a few miles from where Mr. Trump grew up in Queens, yet the metaphoric distance between us was vast. My dad was a taxi driver who could give me only $100 to help pay for college. Mr. Trump’s father was a real estate developer who bequeathed him at least $413 million over the years. While Mr. Trump escaped the Vietnam draft with a medical exemption for bone spurs and never served in the military, I finished my degree with the help of the G.I. Bill after I enlisted and served in the Middle East. What I experienced defending the Capitol against rioters was worse than the combat I saw in Iraq.

[snip]

Although I don’t blame all Trump supporters — some of my own relatives support him — I do detest what MAGA extremism did to me and my team on Jan. 6. I resent the ongoing whitewashing of the barbarity and the collective amnesia of right-wing politicians who aren’t willing to hold Mr. Trump accountable. I can’t bear to hear Republicans describe themselves as the “law and order” party.

Mr. Trump is returning to the presidency at 78, while I had to leave the career I’d worked for my whole life at 42 as a result of injuries suffered while doing my job. I sometimes wonder why I risked my life to defend our elected officials from a mob inspired by Mr. Trump, only to see him return to power stronger than ever. It’s hard to witness a rich white man get rewarded for treachery while I’m punished for fulfilling my duty. Maybe that’s why so many people don’t do the right thing — because it’s hard and it hurts.

Michael Fanone shared some bitterness with Brandi Buchman.

Fanone said his experience as a police officer has taught him that accountability is what actually keeps people in line. The threat of going to jail, he said, or the threat of monetary fines can be meaningful deterrents.

But now, he said, “we have a situation where, openly, a political party says, ‘If you’re with us, there’s no accountability.’ That’s proven with those promises for pardons. Just be a Trump supporter, and ’we got your back,” Fanone said. “Well, that’s not fucking law and order.”

[snip]

Today, Fanone said he’s looking for work and often is told that he’s a hero and that he’s loved.

But, he said, he’s also told by prospective employers that they don’t want “potential workplace distraction” or “fallout” and are worried that they too will be targeted simply because they employ him.

Turning to the future, Fanone said he “doesn’t think so highly of myself to impart some life lesson on the American people,” but he could share, unfiltered, what he’s learned in the last four years.

“I no longer believe in American exceptionalism. I certainly did before Jan. 6. I don’t any longer. I think there’s a lot of decent Americans ― I’ve served with them in the police department, known them in the military and in other areas, that are deeply devoted to this country and the Constitution and to just being decent humans. But I don’t think those are the prevailing characteristics of the average American. I think the average American is cowardly and selfish.”

I linked this yesterday, but NYT’s report on how Trump retconned January 6 is quite good.

Don Moynihan describes all the Republican failures to hold Trump to account.

There was nothing inevitable about where we are today. In key moments key Republicans said, essentially, that Jan. 6 was not a big deal, or even a positive event. It is hard not to conclude that the people who occupy key institutions in newer democracies were simply less willing to take those democracies for granted. By contrast, American democracy seems to be of such little value to many of its leaders that they did nothing to defend it.

Merrick Garland pays tribute to the investigators who’ve fought for accountability for January 6.

The public servants of the Justice Department have sought to hold accountable those criminally responsible for the January 6 attack on our democracy with unrelenting integrity. They have conducted themselves in a manner that adheres to the rule of law and honors our obligation to protect the civil rights and civil liberties of everyone in this country.

Tom Joscelyn and Norm Eisen catalog Kash Patel’s conspiracy theories about January 6.

The role that the Proud Boys played instigating the January 6th attack has long been known. There is no credible evidence that suggests they were somehow duped into storming the Capitol. Yet Patel has repeatedly attempted to shift blame away from then President Donald Trump and rightwing extremists and onto the FBI.

For instance, Patel advocated for this conspiracy theory during a March 2023 interview with rightwing YouTuber Tim Pool. Brandishing his law enforcement credentials, Patel explained how he and others could “defeat the insurrection narrative” by pointing to the presence of FBI informants on January 6th.

“I think, as a former federal prosecutor and a public defender who defended a lot of these types of cases, what you need to show is whether or not the FBI and government agents were using undercover operatives and informants on the day of January 6th,” Patel said. Patel implied that the FBI’s conspiracy was long in the making, arguing it takes “a six-month buildup” at a minimum to place operatives or informants in extremist groups.

CNN confirms earlier NYT reporting that prosecutors chased leads between Trump and the crime scene in 2021, which ended up being dry holes. (Note, CNN gets the dates on overt grand jury activity wrong: subpoenas started going out in May 2022 and the Executive Privilege fight began in June 2022.)

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Gravity and Trump’s Conspiracy Cabinet

January 5, 2025/31 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, Hunter Biden, Mueller Probe /by emptywheel

This paragraph, describing the role that aspiring FBI Director Kash Patel played in Trump’s video collaboration with a bunch of mostly-violent Jan6ers, appears about two thirds of the way through a very good NYT review of how Trump has rewritten the history of January 6.

Mr. Trump recorded his contribution at his Mar-a-Lago residence in Florida, while the choir was recorded with a phone in the Washington jail. The song — a fund-raising effort that the Trump loyalist Kash Patel, now the president-elect’s nominee to head the F.B.I., helped produce — concludes with a defiant echo of the “U.S.A.!” chants that resounded during the Jan. 6 attack.

Kash Patel has been central to the success of Trump’s repackaging of his own crimes as grievance from the start.

And I’ve been trying to figure out how that’ll work as I contemplate what I think of as Trump’s Conspiracy Cabinet.

I’ve been thinking of his nominations as a combination of a highly competent Christian nationalist core (led by Stephen Miller and Russ Vought), largely filled out with people who’ll be in the business of graft and other kinds of corruption — whether for their own benefit or Trump’s. But the most unpredictable element is how Trump plans to fill government with embodiments of the conspiracies that have become central to his movement.

That’s most evident in virtually of Trump’s health-related appointments, starting with Bobby Kennedy (who might yet lose his confirmation battle). I don’t, for a second, believe the claim from someone adjacent to Roger Stone that Trump picked RFK and Tulsi Gabbard as a way to tap into a realignment of Democrats. Rather, Trump had to appoint them to keep the likes of Matthew Livelsberger , who invoked RFK in his manifesto, engaged, no matter the cost. And so after having presided over a heroic rush to develop a COVID vaccine in his first term, Trump will hand over America’s scientific crown jewels to people who don’t believe in science.

What will happen when these conspiracists confront the immutable laws of science? What will happen when gravity hits?

And how many children will die as a result?

The damage that Tulsi will be able to do (again, her confirmation is not assured) at National Intelligence is more measurable. US intelligence has been politicized for years. Forever. Such politicization as often as not cause self-perpetuating scandal cycles. And if not, Bad Things will likely result that will harm the US and lead to avoidable catastrophes that Trump should own.

It’s the damage posed by Kash’s likely installation at FBI — he has a better shot at confirmation than either RFK or Tulsi — that I can’t fully grok.

Back in the halcyon days of the Durham investigation, I came to believe that gravity would defeat these grievance myths, would defeat the kinds of conspiracies Kash sows, too. Even with Durham, Kash helped facilitate the false claims Durham spun out of theories of conspiracy hung on two false statements indictments. A key prong of the Sussmann prosecution — into what he said to the CIA in January 2017 — arose out of a question Kash somehow knew to ask on December 18, 2017. Then, after Durham deliberately misrepresented legitimate intelligence that Georgia Tech discovered dating to the Obama Administration to insinuate that Trump had been spied on, Kash made a number of unhinged claims to expand on Durham’s already false claim.

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money. And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

This one-two punch — first Durham misrepresenting evidentiary claims and then Kash spinning Durham’s misrepresentations free of all mooring — resulted in Trump making death threats targeting Sussmann and an entire campaign targeting Rodney Joffe.

But in the end, even though Durham’s lawyers repeatedly defied Judge Christopher Cooper’s orders, they ultimately mostly failed to present the theory of conspiracy they had about Sussmann’s alleged false statement. Sussmann, after paying superb lawyers a bunch of money, having his career disrupted, and facing death threats ginned up by the former President, was acquitted.

The process worked, but not before a great many people’s lives were upended, irrevocably.

So even though only NYT joined me, in exposing the degree to which a theory of conspiracy, and not any real evidence, lay behind Durham’s insinuations of guilt, even though the legacy media chased Durham’s theory of conspiracy hook line and sinker, I at least believed that the system would work.

The Hunter Biden prosecution has disabused me of that faith. Between the fact that Hunter really did evade taxes — the presence of a crime that could substitute for all the unsubstantiated claims about him — and the way a multi-year revenge porn campaign solidified the legacy media belief he was too icky for due process, prosecutors continue to make outlandish claims with little pushback, much less curiosity about why a witness to a crime is overseeing the investigation into it.

As FBI Director Kash will have the ability to do what he did in advance of the Sussmann hearing, find some nugget, tangential to any topic at hand, on which to hand a larger conspiracy theory.

Amid all the focus on Trump naming his defense team to run DOJ, there has been little focus on the fact that Emil Bove, whom he named to PADAG (even though the position doesn’t require confirmation and once confirmed as DAG, Todd Blanche could presumably put anyone he wants in the position), presided over a serious discovery violation scandal at SDNY, which forced him out of DOJ. If judges continue to hold DOJ to already weak discovery requirements, due process might survive. But if DOJ institutionally permits prosecutors to ignore their ethical guidelines, it will become far, far easier to frame defendants.

And the press has simply stopped reporting on due process, choosing instead to chase whatever dick pics propagandists unpack in front of them.

Kash Patel earned his nomination to be FBI Director by being the self-described wizard of Trump’s grievance myth. He has done such a tremendous job spinning that myth that even some good faith Republican Senators believe that myth as true.

And while I’m sure that gravity will eventually catch up to RFK Jr, as it did in Samoa, while I have every expectation to continue doing what I do, if only to witness further assaults on due process, I’m far less sanguine about gravity’s effect on a Kash-run Bureau.

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On the Ambivalence of Speaker Mike’s Gavel

January 4, 2025/32 Comments/in 2024 Election, 2024 Presidential Election /by emptywheel

Mike Johnson was reaffirmed Speaker yesterday.

The how matters. In what would have been the first vote, six people did not vote and three voted for other candidates, for a total of nine people opposing Johnson. The number is significant because the new rules require nine people to call to replace the Speaker (right wingers sent out a letter of complaints about Johnson signed by 11 members, so they have a few friends). So before the vote was cast, the right wingers demanding austerity from Johnson made a show of having the ability to immediately call to replace him.

At that point, Hakeem Jeffries had 214 votes, Johnson 210, others 3, and 6 people wandering the halls.

Then, basically, Republicans cheated to keep the vote open for two hours. They hid the “tellers,” who have to tell the Acting Clerk what their vote totals, off the floor, so the vote could not be called.

Meanwhile, the six holdouts spoke to Trump, who exhorted them that Johnson was the only person with the “likability” to get his, Trump’s, policies approved. Eventually, the six no votes registered for Johnson, two of the three “other” votes flipped. And Mike Johnson got the required 218 votes.

So: cheating and fealty to Trump will get Trump through to Monday where he’ll be declared President.

Lots of stories on this want to determine what it all means and I think the most important takeaway is we don’t know. Mike Johnson could build on cheating and blind fealty to Trump to go anywhere from here.

The hardliners made it clear — in the way they delivered their votes — they are disciplined yesterday. What’s not clear are whether Main Streeters (what might be called moderates if they weren’t just a different kind of right wing) could be equally disciplined if it came to it. I doubt they can. That’s when you’ll see the same carrots and mob-based threats we saw during the Jim Jordan fight.

Thus far, Jeffries has managed his caucus impeccably. Going forward, staying unified in opposition, in contrast to what Dems did last Congress (where they usually kept the lights on with a minority of Republicans), may be a tougher battle.

The question is how coming challenges will stress the very fragile unity Johnson won today.

Monday’s vote certification should be uneventful. Kamala Harris can put herself out of a job without a terrorist attack to threaten it.

Then Congress has to raise the debt limit. This is actually an area where there could be sharp disagreement between the hardliners in Congress and Trump, because they [think they] really want to cut US debt, whereas Trump wants no limits on his spending powers. Johnson will be completely dependent on Trump, so he’ll likely try to raise the debt ceiling. But there’s no reason for Democrats to help him do that.

If, as I wildarse guess, Brad Weinsheimer fancies delivering up both Jack Smith and David Weiss Special Counsel reports around January 10, those reports may create chaos as well. As I’ve said, I think Weiss wants to smear up Biden, and Republicans could well be tempted to impeach him on his way out of dodge.

Short term Republican hopes are that they’ll be able to achieve much of their policy goals through reconciliation (which cannot be filibustered in the Senate). But that’s already a bone of contention.

A lot of the reviews of the vote have focused on how little Johnson has to manage the Freedom Caucus. And many Freedom Caucus members are stupid and believe that Jim Jordan could get the gavel — and with enough coercion from Trump, they might be right.

But what we know least going forward is how tensions between Trump and those right wingers will play out, the degree to which he’ll be able to coerce or con his way out of them, and the degree to which the few sane Republicans left will want to stick around and watch all that.

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Leo Wise Buries Bill Barr with Six Year Sentencing Recommendation

January 3, 2025/17 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

To be absolutely clear, David Weiss’s lead prosecutor Leo Wise did not bury Bill Barr with a recommendation that Bill Barr be sentenced to six years in prison for framing Joe Biden.

No.

Leo Wise argued that Alexander Smirmov should be sentenced to six years in prison for (in addition to cheating on his taxes over three years) providing a false claim that Mykola Zlochevsky had bribed Joe Biden via the side channel that Bill Barr set up in the wake of Trump’s search for bribery allegations against Joe Biden.

In 2020, Smirnov and his willingness to make false claims about Donald Trump’s opponent were magically discovered by a team Barr ordered Pittsburgh US Attorney Scott Brady to convene. After that team magically discovered Smirnov, the FBI magically failed basic vetting, such that they took travel records showing no evidence Smirnov took trips he claimed to have taken and, from those, declared his travel records corroborated his claims.

Remember, vetting was, if you believe in magic, the entire point of the Brady side channel!

That would have been the end of things. Except then, one after another Republican kept magically rediscovering Smirnov’s false claim, each time using it as an excuse to ratchet up further investigation into Hunter and Joe Biden.

That happened in October 2020 after Donald Trump yelled at Bill Barr. That happened in May 2023. That happened in June 2023. And that happened when Leo Wise decided to chase the allegation in July 2023.

And in his sentencing memo, Leo Wise has argued that Smirnov should be punished with six years in prison because of Scott Brady and Bill Barr and Jamie Comer and Jim Jordan and Donald Trump and Leo Wise’s lust to pursue a claim that Joe Biden took a bribe.

Before I get into the story Wise tells to get there, check out how his sentencing recommendation compares to Charles McGonigal’s, who in addition to lying on FBI disclosure forms in order to hide that he had a side foreign partner paying him $225,000, like Smirnov, caused a false investigation to be filed against someone (the rival of McGonigal’s Albanian partner).

The left column is sentencing guidelines mumbo jumbo, but what you need to know is that prosecutors were arguing sentences for the same base level crime, 18 USC 1519 (altering a document) with a baseline of 14 points. Both were slapped with enhancements because their false claims led the government to take investigative steps (more on that below). Leo Wise argued that non-employee FBI informant Smirnov should get the same penalty for abusing his position of trust, 2 points, as a NY Field Office Special Agent in Charge (though that may be the only available enhancement). Then on top of the enhancements McGonigal got for hiding his side business from the FBI and investigating his partner’s rival, Wise argued Smirnov should get 2 points for how important the document is, and then first 3 and then another 2 points for framing a former Vice President during a Presidential election and also because his document was used again while Biden was President, including when Leo Wise decided to chase it.

One way you can tell this whole sentencing process — likely this whole plea deal — is a sham, is that Smirnov’s excellent attorneys didn’t do the analysis I just did (to say nothing of comparing Smirnov to Kevin Clinesmith, who altered an FBI email and whose victim was a former Trump campaign aide, yet got probation), showing that Leo Wise wants to punish Smirnov more aggressively than a guy who sold out the FBI and also caused a false investigation to be opened. The comparators Smirnov’s excellent attorneys invoked all involve people who got probation for conduct similar to Smirnov’s (but again, mysteriously not Clinesmith). Even if you assume Smirnov should go to prison for framing Joe Biden, though, it’s hard to see how his betrayal is worse than McGonigal’s.

Another way we can tell the whole sentencing process is a sham is that, as I speculated, the 4-6 year sentencing included in the deal was totally arbitrary, probably intended to serve some other purpose, maybe frame Joe Biden? Turns out even with all those enhancements, Leo Wise still only got to a 57 to 71 month range, but that didn’t stop him from asking for 72 months anyway. The range was, indeed, not based on guidelines, nor is it yet.

Which is where we finally get to the story Leo Wise told about all this, and ultimately to where he has hidden Bill Barr, the guy who ordered up the side channel that magically found a way to frame Joe Biden and then, in 2023, who made claims about the process with the result that the same Smirnov claim ended up framing Joe Biden a second time.

Leo Wise tells the story of how this all went down twice. The first time (in the section laying out Smirnov’s crime), he mostly stuck to what Wise put in the indictment, starting with the Brady side channel, to which Wise adds the letter to Jerry Nadler intended for public consumption, attributing the side channel to Jeffrey Rosen, not the guy mentioned in Trump’s perfect phone call who ordered Brady to open the side channel and to whom Brady personally reported on it.

In June 2020, the Handler reached out to the Defendant concerning the 2017 1023. Obstruction of Justice Indictment (Exhibit 2) ¶ 22. This was done at the request of the FBI’s Pittsburgh Field Office (hereafter “FBI Pittsburgh”). Id. In the first half of 2020, the United States Attorney’s Office for the Western District of Pennsylvania (hereafter “USAO WDPA”) had been tasked by the Deputy Attorney General of the United States to assist in the “receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.” Id.; see also February 18, 2020 Letter to The Honorable Jerrold Nadler (Exhibit 8). As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. Id. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”. Id.

From there, Wise vaguely describes how, in July 2023, the FBI asked the people who were already investigating Hunter Biden to look into the Smirnov allegation, mentioning as well that, having magically gotten a copy of the 1023, Charles Grassley released it on a date Leo Wise chooses not to include: July 20, 2023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. Obstruction of Justice Indictment (Exhibit 2) ¶ 41. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1. Id.

Also in July 2023, a member of the United States Senate posted the 2020 1023 on his official website, making the Defendant’s false allegations against Public Official 1 public. https://www.grassley.senate.gov/news/news-releases/grassley-obtains-andreleases-fbi-record-alleging-vp-biden-foreign-bribery-scheme (Exhibit 5).

On August 11, 2023, the Attorney General appointed David C. Weiss, the United States Attorney for the District of Delaware, as Special Counsel. Obstruction of Justice Indictment (Exhibit 2) ¶ at 42. The Special Counsel was authorized to conduct the investigation and prosecution of Businessperson 1, as well as “any matters that arose from that investigation, may arise from the Special Counsel’s investigation, or that are within the scope of 28 C.F.R. § 600.4(a).” Id

On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. Id. at ¶ 43. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it. Id.

No need to tell Judge Otis Wright about how sometime before July 10 — and probably as early as June 19, when Leo Wise came in and David Weiss started to renege on a signed plea deal — David Weiss was already investigating the allegation. Blame it on Chuck.

In this telling, Wise buries Barr’s personal role in setting up the side channel in January 2020, as well as Barr’s personal role in inflaming things in June 2023 — about the time that Weiss started reneging on a plea deal — by telling Margot Cleveland that he had told David Weiss to investigate this in 2020.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

[snip]

But that’s just not true, according to the former attorney general. Instead, the confidential human source’s claims detailed in the FD-1023 were sent to the Delaware U.S. attorney’s office for further investigation, according to Barr.

Wise then tells the story again later, when he tries to lard on how much work Smirnov caused because he had the bad luck of having his willingness to make shit up about Joe Biden discovered by people who were hoping to make shit up about Joe Biden.

Wise doesn’t explain how Brady’s folks would even come across Smirnov’s allegation if all they were doing was vetting open source tips. It’s Smirnov’s fault Brady magically started searching on Burisma and Hunter Biden and discovered a guy who started offering to make shit up about Joe Biden a month earlier.

In 2020, the FBI, through the Pittsburgh Field Office, and the U.S. Department of Justice, through the U.S. Attorney’s Office for the Western District of Pennsylvania, assigned investigators and prosecutors to pursue the false allegations that the Defendant made that were memorialized in the 2020 1023. For example, the document titled “Open Items for Completion by PG” shows various investigative steps that FBI Pittsburgh and FBI Seattle, where the Defendant’s Handler was located, took in an attempt to assess the credibility of the allegations the Defendant first reported in 2020 that were memorialized in the 2020 1023. Exhibit 6

In 2023, the FBI assigned a second team of investigators, through the FBI’s Wilmington RA and the U.S. Department of Justice, through the U.S. Attorney’s Office for the District of Delaware and later the Special Counsel’s Office, to investigate the Defendant’s allegations. This second group of FBI agents and prosecutors took investigative steps that caused them to conclude that the Defendant was lying and that he should be prosecuted himself for these lies.

In any event, significant Justice Department resources were expended determining that the Defendant’s false allegations were lies

Then it blames Smirnov — and not the GOPers seeking to frame Joe Biden — for the efforts FBI had to take in an effort to tamp down GOP efforts to find a way to frame Joe Biden.

In addition, the 1023 caused the substantial expenditure of government resources by the U.S. Congress and the FBI and Department of Justice in the Congressional oversight process. The following is a summary by FBI Director Wray of the actions taken by the Congress and the FBI and Justice Department specifically related to the 2020 1023

Most remarkably, given the way Leo Wise obscures that, after Barr publicly declared that David Weiss had been ordered to investigate the Smirnov allegation, a claim backed by multiple public records, David Weiss had publicly confirmed he was looking at the Smirnov allegations before someone magically gave Chuck Grassley a copy to leak, to argue for the extra two point enhancement for a super duper victim, the President of the United States!, Wise complains that Smirnov retold his lie when Wise (and Weiss) came calling, or maybe it’s that Comer and Jordan were trying to frame Joe Biden while he was President, or maybe it was all an election interference stunt.

The upward departure contemplated in Application Note 5 differs from Section 3A1.2 in two important ways. First, it uses the present tense “if the official victim is an exceptionally high-level official …” (emphasis added). When the Defendant was interviewed in September 2023 and repeated his false accusations against Joseph R. Biden, which is described in the indictment and is relevant conduct, Joseph R. Biden was the President of the United States. So that requirement is met. Second, the last phrase in the application note refers to “potential disruption of the governmental function,” which is an additional requirement that must be met to justify an additional upward departure. Congressional oversight is a “governmental function.” At the time the Defendant repeated his false accusations in September 2023, the Congress was actively involved in examining the Defendant’s false claims in the 2020 1023. The 2020 1023 was released publicly in July and, as described above, the Congress and the Executive Branch had taken numerous steps to address its claims. The Defendant’s choice to repeat his false claims when he was interviewed by the FBI in September 2023 had the potential to further disrupt the oversight process, which is a governmental function.

Further, at the time the Defendant was interviewed President Biden was a candidate for re-election. The Supreme Court has long recognized a state’s compelling interest in regulating elections, i.e. in securing the right to vote freely and effectively. Burson v. Freeman, 504 U.S. 191 (1992); see also Mills v. Alabama, 384 U.S. 214 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970). The Defendant’s false statements had the potential to disrupt the conduct of federal elections by spreading misinformation about the presumptive nominee of one of the two major American political parties in the 2024 elections.

This all gets to be a bit much.

The truth of the matter is Donald Trump ordered his people to frame Joe Biden, Bill Barr set up a way to facilitate that process, they magically found a way to do that, and after Lesley Wolf tried to save David Weiss from all this in 2020, Leo Wise came along and — goaded on by an entire Congress trying to frame Joe Biden — decided he knew better and would pursue the same allegations that didn’t make sense three years earlier.

And here we are and all of this is the fault of Alexander Smirnov, and — according to Leo Wise — he should face the kind of obstruction sentence never before seen because the entire Republican party facilitated his effort to frame Joe Biden.

Alexander Smirnov was willing to frame Joe Biden and he got caught. But he got caught because the entire GOP renewed the effort to frame Joe Biden, over and over and over again.

Yet for that, only Alexander Smirnov should face a six year sentence, Leo Wise says.

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Alexander Smirnov’s Vetting

January 2, 2025/8 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

David Weiss submitted his sentencing memorandum for Alexander Smirnov last night; it was a splendid exercise in comedy, well worthy of the sawdust-as-cocaine team. Congrats, gents, and thanks for kicking off an insane year in fine style!

But you’re going to have to wait on the comedy.

First, I want to review a vetting document submitted with the sentencing, completed sometime in July 2020 (per the indictment, on August 12, David Bowdich and Richard Donoghue recommended the assessment be closed, a claim that conflicts with known documentary evidence and Bill Barr’s public comments).

The most important detail in the assessment is a bullet explaining that the current reporting (probably on a Smirnov associate central to his story) “does not reveal the 2015/2016 introduction.” Contrary to what Scott Brady led Congress to believe in testimony given under oath, they already had good reason to doubt Smirnov’s story, yet DOJ resuscitated it anyway in the days after Trump yelled at Bill Barr in October 2020. And then again when Congress was looking to frame Joe Biden.

Another detail that David Weiss’ team has thus far obscured pertains to the date when, Smirnov claimed, he had a follow-up conversation about bribery with Mykola Zlochevsky. The call purportedly happened on a 2019 trip to London. This vetting document describes that Smirnov was in London working with the British National Crime Agency [!!!], after which Smirnov stayed behind. If the call happened in that time, it would have happened between October 7 and 11, 2019 — precisely the period when Lev Parnas was trying to board a plane to swap legal assistance for a laptop from Mykola Zlochevsky, only to be arrested at the airport. There’s no reason to believe the call did happen, but if it did, it would have been directly tied to impeachment and Rudy’s thwarted effort to get dirt from Burisma in that same time period. To believe it happened, you’d have to believe that Lev Parnas was supposed to fly to Vienna for an in-person meeting, while at the same time, Zlochevsky fed Smirnov the dirt Rudy was seeking via another channel. It could happen!! Other aspects of this story look just like that!! But if you ever remotely entertained this theory — as David Weiss did — it would suggest all the allegations about Hunter being set up were true, not the reverse.

No wonder all the documentation in this case thus far left that detail out.

Finally, there’s a long response to a question about whether Smirnov knew a guy named Michael Guralnik or any of the people he reported on. Guralnik is where Rudy’s Ukrainian dalliance started, in 2018, as reported by Daily Beast (though there’s plenty of other reporting on him).

The letters, which The Daily Beast reviewed, claim that an eclectic mix of Ukrainian political figures and businesspeople were part of an alleged “organized crime syndicate.” The letters claim that the individuals were “actively involved in the siphoning of funds appropriated by the American government for aid to Ukraine.” And they claim that the alleged crime syndicate used those funds to buy black-market military parts from a Russian company under U.S. sanctions. All the while, they say, Ukraine’s then-prosecutor general (Giuliani ally Yuriy Lutsenko) couldn’t fight the crime because then President Petro Poroshenko wouldn’t let him take the case to court.

“It concerns me, as should any fellow American, that a taxpayer’s money is rudely been stolen in Ukraine [sic],” reads the letter to Mandelker.

The letter-writer introduces himself in the letter addressed to Mandelker as a Ukraine-born U.S. citizen named Michael Guralnik who graduated from the Soviet Military Academy and was “a 10-year veteran of the Soviet Army.” The letter to Graham, meanwhile, also bears Guralnik’s name but contains no introduction. It arrived a month before Giuliani tried to help former Ukrainian top prosecutor Viktor Shokin travel to the U.S. and meet with Graham, Bondy said. A few weeks before the date of the Guralnik letter, Giuliani sent Graham a letter of his own asking his staff to help three unnamed Ukrainians get visas so they could come to the U.S. and share information about the Bidens. The State Department did not give Shokin a visa.

The letters say that the “only way” to “stop this syndicate” is to sanction the individuals involved. Both letters list 12 people, along with phone numbers for some of them. Included on the list are Mykola Zlochevskiy, the head of the scandal-plagued Ukrainian company where Joe Biden’s son Hunter Biden was a board member; Valeriya Gontareva, the head of the National Bank of Ukraine from mid-2014 to mid-2017; and Kateryna Rozhkova, who was her deputy.

Graham and Giuliani did not respond to repeated requests for comment, and it was not immediately clear if lawmakers ever even considered the sanctions. A spokesperson for Graham did not respond to a request for comment. Mandelker did not comment on the record for this report. When contacted, Guralnik hung up the phone and texted, “Do not call any more.”

The people in the letters Daily Beast describes appear to be different than the people FBI was chasing 18 months later. But there are several references in this document that suggest Brady got the claim that Biden had been bribed from Guralnik via Rudy first, and then chased down Smirnov, who was all too willing to say something that corroborated it. That’s a bit different than what members of Congress claimed last year; they insisted there was no tie to any of the dirt that Rudy had obtained.

Assessment content

Those are the big takeaways.

I’ve reproduced the outline used in the assessment, below (hopefully in more usable format than the Bureau managed), summarizing what is in there. It is probably done by the Pittsburgh FBI office (PG in the document).

The assessment appears to be split into two parts, the stuff Pittsburgh FBI could do and the stuff they claimed (not always credibly) they needed to have a predicated investigation to chase. I’m actually a bit sympathetic to the bullshit here. Scott Brady’s transcript is rife with discussion of a fight between him and the FBI about how much they could do without a preliminary investigation. These claims that FBI couldn’t do some of this at an assessment level may have just been the FBI’s effort to say, we’re not going to do this anymore unless you give us top cover, which is exactly what the fight sounds like as described by Brady. So the assessment ended, it got sent to David Weiss (which, again, doesn’t show up in the sentencing memo), and Lesley Wolf did nothing, leaving it there for Bill Barr to reflate in time for an election.

In each of those two parts, there may be three subcategories: Smirnov, and two others. The two others are completely redacted.

There are three Smirnov-related bullets in the assessment section. The first, is the question that elicited the response about Smirnov’s travel (there’s no context to the other two, bullets e and f). Given that Brady misled Congress on precisely this issue, I’m skeptical about that first redaction.

The items left for a predicated investigation — things like interviewing the Smirnov colleague through whom he said he met Zlochevsky and reviewing his travel — are all things Weiss’ team appears to have done, based on the indictment (though there’s no mention of the CIA). Perhaps the most obvious of those was to review Smirnov’s texts with his handler (you’d think you could do this at the assessment level, but testimony in the Oleg Danchenko trial suggests that may not be the case). That’s pretty telling. As those disclosed, Smirnov was sending his handler rewarmed Fox News propaganda, debunked months earlier, which if Smirnov had been competently handled at all, should have set off alarm bells.

More importantly, those texts showed that Smirnov offered up a bribery fabrication in May 2020, and then in June 2020, Scott Brady magically came looking for it.

As we’ll see in the sentencing memo, short of sentencing Smirnov on the fly as he is so he could get some follow-on indictment before Trump comes in, David Weiss has thus far exhibited not the remotest curiosity how that happened, how out of all the gin joints in all of the world, Scott Brady just happened to walk into Smirnov’s, the guy who a month earlier was offering up a fabricated Joe Biden bribery allegation.

And so, because a witness to this scheme is in charge of investigating it, we may never get an explanation of how that happened.

Update: In the sentencing memo, Leo Wise claims that Alexander Smirnov didn’t tell any lies pertaining to the period after Biden was Vice President.

In 2020, Joseph R. Biden was a former government officer, namely, the former Vice President of the United States. The Defendant’s text exchanges with his handler and others also evidence that he was motivated by Joseph R. Biden’s status as the former Vice President of the United States. The Defendant’s false statements all involved conduct that occurred when Joseph R. Biden was Vice President of the United States and the Obama Biden Administration lead on Ukraine policy.

For the reasons I laid out above, that appears to be false: it appears the claimed 2019 call with Zlochevsky could not exist. It seems that Wise may have dodged that in an attempt to distance his own effort from Trump’s efforts to find a way to frame Joe Biden.

Open Items for Completion by Pittsburgh FBI

1 [redacted]

2 Corroborating [Smirnov]

a. [redacted]

b. FBI PG/HQ PCU Response regarding travel

i. Photos of Smirnov’s passports sent on July 2, 2020

ii. CBP details about Smirnov’s travel provided on July 2, 2020 showing trips to Vienna from October 8 to 19, 2016, October 21 to 26, 2016, and December 8 to 10, 2016

iii. Smirnov’s trip to London from October 7 to 11, 2019

iv. A follow-up to confirm Smirnov’s travel, to which Smirnov’s handler offered pablum: “CHS travels very frequently and had traveled to Ukraine and London on multiple occasions during the relevant time periods, so it would be difficult to pinpoint the meeting.”

c. Does Smirnov know people named by Rudy Giuliani source Michael Guralnik?

d. How does Smirnov communicate with [redacted]? Via WhatsApp.

e. [redacted]

f. [redacted]

g. Further information

i. Someone else’s passport requested from NDOH on July 7, 2020, provided to serial on July 9, 2020

ii. Smirnov’s first references to [someone] while reporting on Transnational Criminal enterprises in November 2014

iii. Smirnov was introduced by Igor Fridman in 2013/2014

iv. Smirnov first reported on Burisma in March 2017

v. Smirnov handler provides phone number for other person

vi. This person had a B1/B2 visa in 2017, with an address in Kyiv

vii. Someone related is the subject of numerous SARS amounting to $200,610

h. An instruction to review the case file for all references to the alleged $5 million bribe to Hunter or Joe Biden, including a 302 from Guralnik

i. FBI PG say there’s nothing additional but “this is an ongoing process”

i. How would Mykola communicate with the Bidens?

i. Smirnov didn’t know

[2-3 other items, apparently first level title]

Items for consideration (likely necessitating a predicated investigation)

1. Further Smirnov corroboration

a. Validation of CHS and information provided ongoing

b. Further assess Smirnov colleague through third party FBI interview

c. Review CHS’ travel with CHS to determine estimated timing of in-person meetings with Mykola Zlochevsky

d. Further details on Guralnik

e. Cellebrite information on text messages with handler

f. Determine overlap with another case

i. PG recommends this happen with HQ validation [seems to be a deconfliction issue]

g. Coordinate with OGA [CIA] partners on reporting relating to dates, places, and persons of interest

2. Something else probably not Smirnov related

3. Something else probably not Smirnov related

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Artificial Frameworks about Elon: On Adrian Dittmann and Tommy Robinson

January 2, 2025/27 Comments/in 2024 Presidential Election, Artificial Intelligence /by emptywheel

I was alarmed by the response yesterday to Elon Musk’s full-throated propaganda campaign for Tommy Robinson.

In a formula not far off QAnon, Elon has used a child sexual abuse scandal magnified by the Tories to suggest that Robinson has been unfairly jailed for contempt.

He posted and reposted multiple calls for Robinson, whose real name is Stephen Yaxley-Lennon, to be released from prison.

The activist was jailed for 18 months in October after pleading guilty to showing a defamatory video of a Syrian refugee during a protest last year.

Judges previously heard that he fled the UK hours after being bailed last summer, following an alleged breach of the terms of a 2021 court order.

The order was imposed when he was successfully sued by refugee Jamal Hijazi for making false claims about him, preventing Robinson from repeating any of the allegations.

Pictures later showed him on a sun lounger at a holiday resort in Cyprus while violent riots erupted across the UK in the wake of the attack in Southport.

Posts promoted by Musk suggested Robinson was ‘smeared as a “far-right racist” for exposing the mass betrayal of English girls by the state’, an apparent reference to the grooming gang scandal.

This is fairly transparent effort at projection: to do damage to Labour even while delegitimizing the earned jailing of Robinson, a tactic right wing extremists always use (still are using with January 6) to turn the foot soldiers of political violence into heroes and martyrs. The intent, here, is to cause problems for Labour, sure, but more importantly to undermine rule of law and put Robinson above it.

I’m not alarmed that experts in radicalization are finding Musk’s efforts to turn Robinson into a martyr serving sexually abused children repulsive. Nor am I alarmed that experts in radicalization — and, really, anyone who supports democracy or has a smattering of history — are repulsed by Elon’s endorsement of Germany’s neo-Nazi AfD party.

I’m alarmed by the nature of the alarm, which the Tommy Robinson full circle demonstrates.

Endorsements are the least of our worries, in my opinion.

To put it simply. Elon Musk’s endorsement of Donald Trump was, by itself, not all that valuable. Endorsements, themselves, don’t often sway voters.

Elon’s endorsement of Robinson is just the beginning of the damage he can do … and, importantly, has already done. Endorsement is the least of our worries.

It makes a difference if, as he has promised to do for Nigel Farage and as he did do for Trump, Elon drops some pocket cash — say, a quarter of a billion dollars — to get a far right candidate elected.

But where Elon was likely most valuable in the November election was in deploying both his own proprietary social media disinformation and that of others to depress Harris voters and mobilize the low turnout voters who consume no news who made the difference for Trump. We know, for example, that Musk was a big funder of a front group that sought to exacerbate negativity around Gaza (though I’ve seen no one assess the import of it to depress Democratic turnout anywhere but Michigan’s heavily Arab cities). I’ve seen no one revisit the observations that Elon shifted the entire algorithm of Xitter on the day he endorsed Trump to boost his own and other Republican content supporting Trump. (Of course, Elon deliberately made such analysis prohibitively expensive to do.) We’ve spent two months fighting about what Dems could do better but, as far as I’m aware, have never assessed the import of Elon’s technical contribution.

It’s the $44 billion donation, as much as the $250 million one.

In other words, Elon’s value to AfD may lie more in the viral and microtargeted promotion he can offer than simply his famous name normalizing Nazism or even cash dollars.

But back to Tommy Robinson, and the real reason for my alarm by the newfound concern, in the US, about Elon’s bromance with the far right provocateur.

It shouldn’t be newfound, and Elon has already done more than vocally endorse Robinson.

Tommy Robinson is a kind of gateway drug for US transnational support for British and Irish extremism, with Alex Jones solidly in the mix. This piece, from shortly after the UK riots, describes how Robinson’s reach exploded on Xitter after Elon reinstated him.

Robinson, who has been accused of stoking the anti-immigration riots, owes his huge platform to Musk. The billionaire owner of X rescued Robinson from the digital wilderness by restoring his account last November. In the past few days Musk has:

responded to a post by Robinson criticising Keir Starmer’s response to the widespread disorder – amplifying it to Musk’s 193 million followers;

questioned Robinson’s recent arrest under anti-terror laws, asking what he did that was “considered terrorism”; and

allowed Robinson’s banned documentary, which repeats false claims about a Syrian refugee against a UK high court order, to rack up over 33 million views on X.

It was the screening of this documentary at a demonstration in London last month that prompted Robinson’s arrest under counter-terrorism powers. Robinson left the UK the day before he was due in court, and is currently believed to be staying at a five-star hotel in Ayia Napa. He is due in court for a full contempt hearing in October.

None of this has stopped Robinson incessantly tweeting about the riots, where far-right groups have regularly chanted his name. He has:

falsely claimed that people were stabbed by Muslims in Stoke-on-Trent and Stirling;

called for mass deportations, shared demonstration posters, and described violent protests in Southport as “justified”; and

shared a video that speculated that the suspect in the Southport stabbings was Muslim, a widespread piece of disinformation that helped trigger the riots across the country.

Making the weather. The far-right activist has nearly 900,000 followers on X, but reaches a much larger number of people. Tortoise calculated that Robinson’s 268 posts over the weekend had been seen over 160 million times by late Monday afternoon.

Elon gives Tommy Robinson a vast platform and Robinson uses it to stoke racist hatred. Robinson was the key pivot point in July, and was a key pivot point in Irish anti-migrant mobilization. All this happened, already, in July. All this already translated into right wing violence. All this, already, created a crisis for Labour.

Elon Musk is all at once a vector for attention, enormous financial resources, disinformation, and (the UK argues about Xitter), incitement.

I worry that we’re not understanding the multiple vectors of risk Elon poses.

Which brings me to Adrian Dittmann, on its face an Elon fanboy who often speaks of Musk — and did, during the brief spat between Laura Loomer and the oligarch — in the First Person. Conspiracy theorist Loomer suggested that Dittmann is no more than an avatar for Musk, a burner account Musk uses like his another named after his son to boost his own ego.

Meanwhile, the account that supposedly convinced Loomer to concede the fight has some otherwise inexplicable ties to the Tesla CEO. Dittmann also purports to be a South African billionaire with identical beliefs to Musk. The account frequently responds to Musk’s posts, supporting his decisions related to his forthcoming government positions and the way in which the tech leader is raising his children. But the account also, at times, goes so far as to speak on behalf of Musk, organizing events with Musk’s friends while continuing to claim that the two aren’t affiliated.

X users felt that the illusion was completely shattered over the weekend, when Dittman participated in an X space using his actual voice—and, suspiciously, had the exact same cadence, accent, and vocal intonations as Musk himself.

Conspiracy theorist Charles Johnson, in his inimitable self promotion, claims to have proven the case (you’ll have to click thru for the link because I refuse to link him directly).

Right wing influencer and notorious troll Charles Johnson also claims to have uncovered “proof” that Dittmann is Musk.

He writes in his Substack article: “I recently attended a Twitter Space where I exposed Elon Musk’s alt account and Elon Musk as a fraud to his face. Take a listen. It was pretty great. Part of the reason I was as aggressive as I was with Adrian/Elon was to get him agitated so he would speak faster than his voice modulator could work and we could make a positive match using software some friends of mine use for this sort of thing. I can confirm it’s Elon. Even if it isn’t physically Elon in the flesh, it’s an account controlled and operated by Elon/X that represents him in every way shape and form. But of course, it’s actually Elon.”

I’ll let the conspiracy theorists argue about whether Dittmann is Musk.

I’m more interested in an underlying premise about Elon we seem to adopt.

After Elon Musk bought Xitter, he retconned his purpose, in part, as an AI product. After the election, Xitter officially updated its Terms of Service to include consent for AI training on your content.

You agree that this license includes the right for us to (i) analyze text and other information you provide and to otherwise provide, promote, and improve the Services, including, for example, for use with and training of our machine learning and artificial intelligence models, whether generative or another type;

Xitter is unabashedly an AI project. Musk’s views on AI are closely aligned with his far right ideology and his plans to destroy government.

With other tech oligarchs, we can make certain assumptions about their investment in AI: The necessity to always lead technology, a goal of eliminating human workers, cash. Particularly given Elon’s subordination of the profit motive to his ideological whims with his Xitter purchase, that $44 billion donation he made to Trump, I don’t know that we can make such assumptions about Elon.

So why do we assume that everything Xitter’s owner posts, who tweets prolifically even while babysitting the incoming US President, boosting fascists around the world, and occasionally sending a rocket to space, is his own primary work? Most of Elon’s tweets are so facile they could easily be replaced by a bot. How hard would it be to include a “Concerning” tweet that responds to certain kinds of far right virality? Indeed, what is Elon really doing with his posting except to hone his machine for fascism?

I’m not primarily concerned about whether Adrian Dittmann is a burner account for Elon Musk. Rather, I think that simplifies the question. Why would the next Elon burner account be his human person hiding behind a burner account, and not an AI avatar trained on his own likeness?

Beware South African oligarchs pitching fascists and technological fixes. Because you may often overlook the technological underbelly.

Update: I should have noted Meta’s announcement that they plan to create imaginary friends to try to keep users on their social media platforms entertained.

“We expect these AIs to actually, over time, exist on our platforms, kind of in the same way that accounts do,” Meta vice-president of product for generative AI Connor Hayes told the Financial Times Thursday.

“They’ll have bios and profile pictures and be able to generate and share content powered by AI on the platform… that’s where we see all of this going,” he added.

Hayes said AI investment will be a “priority” for Meta over the next two years to help make its platforms “more entertaining and engaging” for users.

Update: Nicole Perloth links the analysis who did what Charles Johnson claimed to do: match the voices of Elon and Dittmann. They believe it’s highly likely to be a match.

Update: Some OSINT journalists have tracked down a real Dittmann in Fiji. Then Jacqueline Sweet wrote it up at the Spectator, all the while blaming the left for this, when it was pushed by people on the right. None of this addresses Elon’s play with the ID (he claimed he is Dittmann in the wake of Sweet’s piece).

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Artificial Frameworks about Elon: On Adrian Dittmann and Tommy Robinson

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