All Hell Is Going to Break Loose: Maybe Jack Smith Did Precisely What Elie Honig Claims He Didn’t

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There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.

Well, now the court filings have incorporated the Willard, yet Honig seems not to have noticed (but then, he has never exhibited much awareness of what’s actually in court filings).

More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.

That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.

Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.

He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.

The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.

9-85.500 Actions that May Have an Impact on an Election

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.

But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.

Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.

The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.

First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.

Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?

It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.

The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.

A still more obvious thing missing from the immunity filing is the Proud Boys.

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.

Unless you were holding them in reserve.

The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.

In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]

Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.

The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.

[seven lines redacted]

The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]

As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.

They’re both just “persons.”

At least in substitutions used in this filing.

Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.

Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.

  1. October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
  2. November 13: “Trump just fired.”
  3. December 13: Bannon resumes daily contact.
  4. December 14: Alternate electors. J6C
  5. January 2: “The Vice President’s role is not “ministerial.” J6C
  6. January 2: Trump wanted Pence briefed by Eastman immediately.
  7. January 4: Pre-Pence Willard Hotel meeting, from which Rudy calls Trump.
  8. January 4: Post-Pence Willard Hotel meeting.
  9. January 5: “Fuck his lawyer.”
  10. January 5: Call with Trump before “All hell is going to break loose.” J6C

Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).

One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.

The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.

Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.

Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.

[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”

So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).

But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.

The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376

That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.

The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.

Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.

But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.

Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.

Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.

These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.

Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.

If we get that far.

Tie Game: WaPo’s Polls and Maggie’s Misinformation

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According to the calendar, there is exactly a month left to the 2024 campaign.

According to math, Donald Trump has less than 5% of his campaign left (31 of 721 days).

Kamala Harris has 28% of her campaign left (31 of 107 days).

The timing is a point raised in this NBC story, which describes that, after having taken the last 76 days to introduce the Vice President to voters, the campaign now plans to ratchet up negative advertising about how unfit Trump is to be President.

Leaning more heavily into negative campaigning is a strategic shift for Harris. While she has routinely been critical of Trump since becoming a candidate in July, and before that as President Joe Biden’s running mate, much of her campaign’s focus has been on defining her and explaining her record to voters.

Harris campaign officials said they intend to continue laying out her policy positions, background and plans if she were to win the presidency — and increasing negative messaging is oftentimes a natural evolution in a presidential campaign as the candidates make their closing arguments.

But emphasizing what Harris campaign officials view as Trump’s major vulnerabilities is seen as possibly one of the only ways to finally win over some voters who haven’t made up their mind in a static race that Democrats want to push in their direction.

[snip]

Harris campaign officials noted that, with less than four months as a candidate, she had to compress what typically would have been a longer introduction of herself before moving more negative messaging to help persuade and turn out voters.

Trump has been running almost entirely negative advertising about Harris for months. She can now, finally, just 76 days into her campaign, start focusing more on how unfit he is.

That’s one of the realities of running a 107 day campaign against a guy who has campaigned for the decade after his reality TV career started to go south. The two candidates are, and have always been, running at different paces.

CNN has a pretty good wrap-up of what’s coming in the next month, broken down into the following sections:

  • Where they’re spending money
  • Turnout
  • Campaign surrogates
  • Improving economy
  • Impact of Hurricane Helene on voting
  • International developments
  • Trump’s attempts to cheat again
  • How to register

WaPo and NYT, however, are having a harder time contemplating what comes next.

WaPo’s story asks whether all the money Harris is spending will make a difference. It has six paragraphs (including the first and last) plus a nifty graphic that focus on polling showing Harris’ monetary advantage has not yet made a difference. It has seven paragraphs, plus another nifty graphic, on advertising, though doesn’t mention the strategic shift that NBC reports.

Yet it takes 22 paragraphs (of around 35) before WaPo gets around to the thing that may make the difference in a race that polls show is a statistically tied race: Turnout.

On this score, Harris’s aides believe Trump has a higher hill to climb, as the political realignment of the last decade has allowed Democrats to make inroads among more habitual voters. That is one of the reasons Democrats believe they outperformed expectations in the 2018 and 2022 midterm elections.

“Trump specifically has an electorate that requires a big campaign in some ways. Part of that is because a lot of the people they need to get are sporadic voters,” said a senior Harris strategist, who spoke on the condition of anonymity to discuss internal data. “They are definitionally harder to reach.”

Trump’s aides, for their part, argue that Harris is the one with the turnout problem.

“They better hope they have a ground game, because they’ve got hundreds of thousands of voters in every single swing state who haven’t cast a vote since the 2020 election in any election and they’re not getting a mail ballot this time,” Blair said.

The Harris campaign claimed in late September to have 330 offices and more than 2,400 staff. They completed 25,000 weekend volunteer shifts on the final weekend of last month, contacting over 1 million voters over three days and completed the 100,000th event of the campaign. Blair said the Trump campaign has more than 300 “Trump Force 47” offices for hundreds of paid staffers. The Trump campaign also claims to have 30,000 highly trained volunteer captains, in addition to other volunteers.

It takes several more paragraphs for WaPo to describe Republicans in three states expressing some concern about field, a central point of Tim Alberta’s profile of the campaign before Biden dropped out, which Hugo Lowell has been describing for weeks, and which Josh Marshal has turned to more recently.

What he has seen from the campaign, he said, is signing up some volunteers to recruit others. “I still think Trump has a slight edge here, so I don’t know if there’s a great deal of concern, but I think it is really close,” Hall said. He said the resource disparity on spending, and the ground game concerns, still give him some pause about the outcome.

There are also concerns in Michigan, three prominent Republicans said, at a lack of volunteers and organization from the Trump campaign. In Arizona, GOP Chairwoman Gina Swoboda has raised concerns privately, but she said in a statement she is now confident.

No one knows how this will turn out. But if the polls really are close to neck-and-neck (something very much in question, for a number of reasons) what will determine the election will be who gets a larger share of their seemingly same number of supporters to the polls. It’s not the polls that matter, it’s the field operation, because voting matters, not polling.

NYT’s version of the same story at least gets that part of the equation correct.

With polling averages showing all seven battleground states nearly tied, many Democrats believe their biggest advantage may be an extensive ground game operation that their party has spent more than a year building across the country.

But it parrots Trump’s claim (Maggie is on the byline) that Bibi Netanyahu’s belligerence and the aftermath of Hurricane Helene will win the race for him.

Mr. Trump’s campaign thinks that recent events — the escalating conflict in the Middle East and deadly hurricanes that have killed more than 200 people across the Southeast — will give them an edge in the final weeks.

[snip]

In contrast, Trump aides see recent events as reinforcing their central campaign message that Ms. Harris is unprepared, weak and incapable of restoring the sense of calm that the Biden administration promised when elected four years ago.

Again, Maggie is on the byline. Perhaps that’s why NYT doesn’t bother to ask — or even point out — that GOP governors throughout the affected region have had high praise for the response of the Biden-Harris team. How would a very competent, bipartisan response to a catastrophe that affected two key swing states hurt Harris, a journalist might ask?

The answer is that Trump and his flunkies have shamelessly used the disaster to spread disinformation, so much so that local conservative officials are begging national right wingers to stop making things more difficult, something CNN (among other outlets, including local ones) has covered. This should be a comment about Trump’s plan to use disinformation; it’s not.

Perhaps relatedly, in the third paragraph of this story, NYT explains why Hillary’s superior financial and turnout advantages in 2016 didn’t result in victory … without mentioning that NYT (as well as a bunch of other outlets) did the work of Russian spies by spending the last month of the campaign talking about John Podesta’s risotto recipe.

In some ways, the two approaches mirror the final days of the 2016 race, when Hillary Clinton’s campaign boasted about a massive, data-driven field organization while Mr. Trump pressed a national message based on stoking anti-immigrant sentiment and improving the economy with a relatively meager staff and almost no field operation in the key states. Mr. Trump, of course, prevailed, helped by the F.B.I. director’s reopening of an inquiry into the Democratic nominee’s emails.

It’s one thing to pretend, as Joe Kahn is, that NYT is not publishing the documents Iran stole because they’re less newsworthy than Hillary’s discussions, years before 2016 but years after 2008, of how she might run in 2016. It’s another thing to simply ignore how useful NYT was to Russian spies in 2016, to pretend that didn’t also weigh down Hillary’s campaign as she tried to defeat ongoing hacks and a flood of disinformation about stolen private emails.

Meanwhile, yet another story bylined by Reid Epstein that insists views on the economy will be determinative doesn’t mention that Trump’s lead on the issue is narrowing, and in at least one poll, has disappeared.

Republicans acknowledge they are being outspent on television and out-organized on the ground in the key states — yet they say Mr. Trump’s strength on the economy and immigration may be enough for him to overcome those structural deficits.

Surveys indicate that Republicans still hold an advantage on economic issues, even as inflation slows, gas prices drop and the Federal Reserve slashes interest rates for the first time in four years. Public opinion on immigration has also swung to the right during the Biden administration, with more Americans saying they support tougher enforcement measures to crack down on illegal immigration.

If it’s true, Reid, that whoever polls better on this wins, shouldn’t you start reporting that polling on this is narrowing?

NYT gets that field may matter. Then it serves as a vehicle for or espouses garbage claims.

Kamala Harris still has 28% of her campaign left to get voters to the polls; even as he’s falling behind on field, Trump has a fraction of that. Which may be why he’s selling the con that that a disaster relief effort that puts all of Trump’s to shame would reflect badly on Harris.

Again, there’s a lot of good reporting linked in this post. Check out CNN. Read the pieces on Republicans fighting back against Republican disinformation. Read Marshall’s assessment of whether Trump’s odd approach to field might work. Or consider the implication of the NBC piece: For some very important reasons dictated by the brevity of her campaign, Harris had to hold off on certain things that you might have seen earlier in a different campaign.

How Jack Smith Wants to Prove Trump’s Crimes

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It goes too far to say, as some commentators have, that Jack Smith’s immunity filing is his trial brief.

If this thing were ever to go to trial, such a document would focus more on the elements of the offense that Judge Chutkan would have jurors assess, which I laid out here. While there’s extensive discussion of the Electoral Count Act, particularly regarding the intentional exclusion of the President from it, there’s less discussion of how Trump’s lies impaired its function, the crime charged under 18 USC 371. While there’s a discussion of the intent behind the fake electors plot, there’s less discussion of how those fake certificates served to impair the function of counting the real certificates (a point Trump made in his post-Fischer supplement to his motion to dismiss the indictment on statutory grounds), something that would be key to proving the two 18 USC 1512 charges. There’s little discussion of the victims — 81 million Joe Biden voters — whose rights Donald Trump allegedly attempted to violate in the 18 USC 241 charge.

Jack Smith is not exactly telling us how he’d prove his case. Rather, he’s asking for permission to use certain kinds of evidence to do so.

There’s no telling how SCOTUS will respond to this (I’m particularly interested in the tactical decision to call the Brooks Brothers Riot, “a violent effort to stop the vote count in Florida after the 2000 presidential election,” in a filing that aims to persuade John Roberts, Brett Kavanaugh, and Amy Coney Barrett.) Prosecutors have raised the cost for Roberts et al, by laying out that their immunity argument basically argues that it is the job of the President of the United States to send mean Tweets eliciting violent threats against members of his own party.

Now that Trump got permission to submit a sur-reply, his team is likely to frame this entire argument anew, as they wanted to do from the start. Given what they’ve said, I would assume their 180-page brief will focus extensively on the chilling effect it would have to hold a former President accountable for almost getting his Vice President killed. Once they prove that, Trump’s lawyers have argued, the entire indictment must be scrapped, because grand jurors were exposed to immunized behavior.

On that point: It seems that the brief relies on immunized conduct that was not shared with the grand jury. This appears most obvious in the footnote where the government says that part of a conversation Mike Pence had with Trump on December 19 is official conduct, but they don’t plan to share it with jurors. A more interesting instance, however, is the reliance on Pat Cipollone’s testimony that, after he showed up to the January 4 meeting at which John Eastman attempted to persuade Pence to throw out legal votes, Trump “explicitly excluded him from” the meeting. Under SCOTUS’ guidelines, that conversation presumably shouldn’t have been presented to grand jurors, but it is powerful evidence that the January 4 meeting was not official business.

The most notable new evidence in the filing is another example. Minutes after Trump sent the Tweet targeting Pence during the riot, the brief describes, Person 15 (Nick Luna), rushed into Trump’s dining room to tell him that Pence had been taken to safety, only for Trump to respond, “So what?” Prosecutors are only using that evidence, they explain, to contextualize the Tweet Trump had just sent, to make it clear it was a private Tweet. “The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet.” Luna probably alerted Trump imagining he might take official action to protect his Vice President, so this would be an official act. Jurors will never hear that testimony, but we get to, as do John Roberts and his colleagues.

Mike Pence

Caveating that I expect Trump to throw the kitchen sink at the Pence issue, I think Smith does fairly well rebutting the presumption of immunity in Trump’s communications with Pence. That analysis relies heavily on the deliberate exclusion of the President from tallying the vote, supporting a conclusion that “it is difficult to imagine an occasion when a President would have any valid reason to try to influence” the certification of the vote (meaning relying on Trump’s discussions with Pence wouldn’t chill valid Presidential communications). It also relies heavily on Blassingame’s holding — one not explicitly adopted in SCOTUS’ immunity ruling — that a candidate for re-election is not entitled to presidential immunity. So, the filing argues, any discussions that Trump and Pence had about their re-election bid (the filing lists nine here) are not official.

[T]he Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period.

[snip]

Pence “tried to encourage” the defendant “as a friend,” when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration°°’—the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities.

Another thing prosecutors did is engage in a system of parallel citation, often citing what must be interview or grand jury transcripts along with passages from Pence’s book.

The brief doesn’t ever mention footnote 3, in which Chief Justice John Roberts, in an attempt to dismiss Justice Barrett’s concerns that excluding officially immune evidence would make it impossible to prosecute the bribery specifically mentioned in the Constitution, said that of course prosecutors could rely on “the public record.” (See Anna Bowers’ good piece on the footnote here.)

3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)

For much of the Pence testimony on which prosecutors want to rely, that parallel system of citation makes clear, there is a public record, and was — even excerpted in the WSJ — months before prosecutors interviewed Pence. Again, prosecutors aren’t making the argument that that should change the calculus. But ultimately, this is an instance where one key victim of Trump’s alleged crimes went public even before prosecutors asked for his testimony.

I actually think where Jack Smith’s bid may fail is with three others: Eric Herschmann (Person 9), Dan Scavino (Person 45), and Stephen Miller (who — best as I can tell — is not mentioned).

Eric Herschmann

If possible, Smith’s prosecutors rely even more heavily on Eric Herschmann’s testimony than the January 6 Committee did. The immunity brief uses his testimony to prove that Trump knew his claims of election fraud were false. It uses Herschmann’s prediction that Trump would never have to pay Rudy for his election interference because Rudy would never be able to prove his claims. It relies on Herschmann’s testimony (and that of another White House staffer) to describe how Trump mocked Sidney Powell even while relying on her false claims. It relies on Herschmann’s testimony about Trump possibly signing a false declaration in a Georgia lawsuit. And it relies on Herschmann to introduce the evidence presented by paid vendors that there was no evidence of substantive election fraud.

The filing includes two long sections (one, two) explaining why Herschmann’s testimony shouldn’t be considered official actions. Herschmann’s relationship with Trump was familial, arising from his childhood friendship with Jared. His portfolio at the White House was undefined. Prosecutors get around the possibility that Herschmann’s testimony might be official by describing his role as a “conduit for information from the Campaign,” providing “near-daily” updates on the campaign. If this argument fails, then a great deal of prosecutors’ best evidence would disappear.

Dan Scavino

Dan Scavino’s testimony is just as critical. Prosecutors want to use Scavino to introduce Trump’s Twitter addiction and to validate that some Tweets — including the one targeting Pence — were sent by Trump.

P45 served as Assistant to the President and White House Deputy Chief of Staff.694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos.695 The Government will elicit from P45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that P45 did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.696 He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was “very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news,” and “knew how to read the replies and see all the replies of what people were saying and doing which . . . led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to P45 having do it. None of this proposed testimony on P45’s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as P45’s testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.

They also want to use Scavino, along with Herschmann and Nick Luna, to testify that Trump was sitting alone in his dining room obsessing about Fox News coverage on January 6.

The filing treats actions by the White House Deputy Chief of Staff as unofficial, in part, by noting that Scavino “volunteered” for the campaign while working as Deputy Chief of Staff and that “he did not differentiate between his official and his Campaign duties and when he would send Tweets on the account for Campaign purposes.” Like Herschmann, Scavino got White House Counsel advice about how to play both a White House and a campaign role. The filing tries to finagle this by distinguishing between Trump’s @POTUS and his @RealDonaldTrump Twitter accounts.

But ultimately, Scavino would be one of the most hostile witnesses at trial, or in any kind of evidentiary hearing (along with Jason Miller). Prosecutors are resting a whole bunch on what even they admit is a vague border between campaign and official Tweeting.

Stephen Miller

Then there’s Stephen Miller, Trump’s Discount Goebbels.

As far as I know, Miller is not mentioned in this brief at all.

That poses a bit of a potential weak point in prosecutors’ effort to rely on Trump’s January 6 speech treated as a campaign speech (which they otherwise do by matching it to a clear campaign speech given in Georgia two days earlier, focusing on who paid for the rally, noting that Secret Service did not consider it an official event, and observing that Trump walked in and out to Lee Greenwood and YMCA rather than Hail to the Chief).

That’s because — as the January 6 Committee Report describes — Miller was intimately involved in adding attacks on Pence back into the speech after the Vice President refused Trump’s demands a final time.

Instead, between 9:52 a.m. and 10:18 a.m., the President spoke with hisspeechwriter, Stephen Miller, about the words he would deliver at the SaveAmerica Rally just hours later.30 The former President’s speech had come together over the course of 36 hours, going from a screed aimed at encouraging congressional objections to one that would ultimately incite mob violence.31

Only four minutes after the call concluded, at 10:22 a.m., Miller emailedrevisions to the speechwriters, instructing them to “[s]tart inputting thesechanges asap” that included “red highlights marking POTUS edits.”32 ThePresident had made some cosmetic additions, like peppering in the word“corrupt” throughout,33 but there was one substantive edit—a new target—that would focus the crowd’s anger on one man.

None of the preceding drafts mentioned Vice President Pence whatsoever. But now, at the very last minute, President Trump slipped in the following sentences calling the Vice President out by name:

Today, we will see whether Republicans stand strong for the integrity of our elections. And we will see whether Mike Pence enters history as a truly great and courageous leader. All he has to do is refer the illegally-submitted electoral votes back to the states that were given false and fraudulent information where they want to recertify. With only 3 of the 7 states in question we win and become President and have the power of the veto.34

[snip]

As recounted in Chapter 5, President Trump called Vice President Penceat 11:17 a.m.39 The call between the two men—during which the President soon grew “frustrat[ed] or heated,”40 visibly upset,41 and “angry”42—lasted nearly 20 minutes.43 And President Trump insulted Vice President Pence when he refused to obstruct or delay the joint session.

After that call, General Keith Kellogg said that the people in the roomimmediately went back to editing the Ellipse speech.44 At 11:30 a.m., Miller emailed his assistant, Robert Gabriel, with no text in the body but the subject line: “insert—stand by for phone call.”45 At 11:33 a.m., Gabriel emailed the speechwriting team: “REINSERT THE MIKE PENCE LINES. Confirmreceipt.”46 One minute later, speechwriter Ross Worthington confirmed that he had reached Vincent Haley by phone.47 Haley corroborated that he added one “tough sentence about the Vice President” while he was at the teleprompter.48

The final written draft had the following Pence reference: “And we will see whether Mike Pence enters history as a truly great and courageous leader.”49 Haley wasn’t confident that line was what he reinserted, but email traffic and teleprompter drafts produced by the National Archives andRecords Administration (NARA) indicate that he was mistaken.50

Here’s how that process appears in the immunity brief:

At 11:15 am., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session.410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed.411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification.412

Admittedly, in the section that specifically argues for the speech’s treatment as a campaign speech, the filing describes that most staffers were using their personal emails to edit the speech (the brief uses this distinction elsewhere, including to admit communications from Mark Meadows). But not the final revisions.

Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email.585 And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech.586

This may not doom prosecutors’ efforts to admit the speech. There are so many other reasons why it is clearly a campaign speech (though of course, SCOTUS has not adopted Blassingame, so they may not even find that dispositive).

But Stephen Miller is right there in the middle of the speech revisions, ready to claim he did so as an official White House employee.

Mind you, if Trump tried to make that argument, prosecutors might revert to the same thing they did to rely on the Tweet Peter Navarro sent, lying about vote fraud, which Trump then used to pitch January 6. Navarro was a Hatch Act recidivist — Trump’s entire White House was — so you can’t use the fact that Navarro had a White House job to rule that his Tweet was an official act.

In tum, that Tweet linked to a document drafted by P69. P69 that had nothing to do with P69’s official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election.633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.

Now’s a good time to reveal that Navarro got a second extension on his deadline to file for cert at SCOTUS, partly because Magistrate Michael Harvey has not yet finished reviewing the emails he sent via ProtonMail for Presidential Records is not yet done. Or, to put it differently, Jack Smith likely still doesn’t have all the emails via which Navarro participated in this coup attempt.

If SCOTUS had any shame, this nitty gritty — the notion that Trump’s mean Tweets against fellow Republicans might be protected under a claim of presidential immunity — would soon become embarrassing.

But then I remember that the three Justices who would be most amenable to such an argument might well grow defensive after being reminded that they were present at the start of all this, the effort to shut down vote counts via lawfare accompanied by the threat of violence.

Update: Lawfare has posted their version of this post. They also point to footnote 3 in the context of Mike Pence’s book.

Update: Note that the December 14 podcast cited in the immunity brief laid out in this post was an interview about the fake elector plot with Stephen Miller. It’s another area where Miller is in the thick of things.

The Immunity Brief: How We Got Here, Where We’re Going

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I want to take a step back and put the immunity briefing released yesterday in context.

On July 1, after SCOTUS released its immunity opinion on the last possible day, it remanded the case back to Judge Tanya Chutkan to assess what was immune under the newly rewritten Constitution.

As soon as she got the case back, Judge Chutkan ordered a status report for August 9 and a status hearing for August 16. But then on August 8, Jack Smith said, sorry, can we have more time? I correctly predicted then that Smith was superseding the indictment, which Smith did do on August 27 (for reasons I won’t yet explain, this filing makes me think we may see more charges after the election).

In a September 5 status hearing, prosecutors successfully persuaded Judge Chutkan to let them deal with the remand by first submitting a brief explaining how the new indictment complies with SCOTUS’ rewritten Constitution. During the hearing, Chutkan reiterated something she has said from the start: she’s not going to let the election stall this prosecution.

I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here.

This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.

Trump’s team ignored that warning, wailing about the election in a filing that was supposed to be about discovery. They wailed again in response to Jack Smith’s request to file a 180-page brief. In her order granting Smith’s request, Chutkan again swatted back at Trump’s election wails.

In response, defense counsel reframed the problem as an “election dispute,” insisting that “it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history.” Id. at 28–29. But Defendant’s concern with the political consequences of these proceedings does not bear on the pretrial schedule; “what needs to happen before or shouldn’t happen before the election is not relevant here.” Id. at 29.

When the prosecutors asked to file its brief in redacted form (which they had warned it would do, and which they noted complied with the protective order in the case), Judge Chutkan gave Trump a deadline of noon on Tuesday — a clear sign she didn’t want to dawdle over redaction fights. Nevertheless, in their reply, Trump’s lawyers accused Smith of “improper political considerations” again, rather than disputing any particular redaction. By choosing to offer no more than generalized complaints for more redactions (redactions that might have hidden, just as one example, how many times current Trump campaign advisor Jason Miller told Trump he had lost, lost, lost the election in 2020), Trump’s team sunk their chance to delay the redactions. I thought it might be quick, but didn’t expect it to come as soon as last night.

In her opinion ordering the motion to be unsealed, Judge Chutkan expressed increasing impatience with Trump’s claims of politicization. Trump already got his shot at a vindictive prosecution claim, Chutkan noted, which she rejected as soon as she got the case back in August.

In addition to the assertions discussed above, Defendant’s opposition brief repeatedly accuses the Government of bad-faith partisan bias. See Def.’s Opp’n at 2, 5–6. These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. See Oversized Brief Order at 2–3 (identifying two recent instances of this pattern). Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case. Defendant has had an opportunity to make his case that his prosecution is improperly motivated. See Def.’s Mot. to Dismiss for Selective and Vindictive Prosecution, ECF No. 116. Future filings should be directed to the issues before the court.

Best as I can tell, Chutkan issued her order around 3:30PM ET yesterday, and the Smith filing posted around 3:35PM.

At 8PM — so well after they should have read Chutkan’s order — Trump’s team requested permission to file for excess pages as well, the same 180-pages that Smith got. They also asked to get a sur-reply, the kind of request that you normally make after someone raises a new issue in a reply, albeit one she effectively invited at the status hearing last month.

But they also asked for an extension for their response until after the election, until November 21. Not only do they offer almost no excuse for the delay, aside from existing deadlines, one of which is for today and the other of which is for an attack on the Special Counsel appointment that conflicts with DC Circuit precedents. But they misrepresent the timing that has already occurred, suggesting that the time DOJ took to consult with others at DOJ and supersede the indictment was rather time they took to write the immunity brief.

[T]he Court granted the Special Counsel’s request for an additional three weeks to complete its drafting, setting a September 26, 2024, deadline.

[snip]

This resembles the 3-week extension the Court previously provided the Special Counsel, Aug. 9, 2024, Minute Order, which allowed the Special Counsel to work on its initial brief before the September status conference. In total, the requested extension would provide President Trump 8 weeks to file his Response, which approximates the 6 weeks the Court granted the Special Counsel (including a 3-week extension before the status conference, and an additional 3 weeks thereafter to finalize its brief and exhibits).

Trump’s lawyers offer no justification for the extension, at all, that arises from their own time constraints (for example, the Jewish high holy days, which have a habit of messing with many a criminal docket, or their other caseload). They simply want more time because, they falsely claim, Jack Smith got more time.

Jack Smith wrote a 180-page filing in three weeks.

And Judge Chutkan already knows that Trump’s team can work quickly. At the status hearing on September 5, when John Lauro similarly tried to stall, Thomas Windom pointed out that in July, Trump’s attorneys wrote a 52-page attack on the New York State hush payment case in nine days.

I want to point out just as a data point for your Honor, on July 10th of this year, the Defendant, in his New York State criminal case, the Defendant and two of the attorneys sitting at this table filed a 52-page motion to vacate his state criminal conviction on the grounds of a Supreme Court opinion that came out nine days before. Fifty-two pages covering an entire trial record in nine days.

The defense can move comprehensively, quickly and well. So can we. And the Court should consider that in setting its schedule. The final piece, your Honor —

THE COURT: Congratulations, Mr. Blanche.

That’s in the court record now: At a pace of 52 pages in nine days, Trump’s team should be able to file their 180 pages in a month.

But a month is longer than their current deadline, which is three weeks. So I wouldn’t be surprised if Chutkan did give them some relief. Even if she gives them one week, it’d bump right up against election day, which is transparently the point.

It is likely that Trump will not have to explain himself until after voters have already weighed in.

Back on August 31, I noted that Trump really didn’t want to have to justify almost getting Mike Pence killed on January 6.

In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

[snip]

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

But there must be more than that. After all, the allegation is out there, along with the new revelation that after Trump sent the tweet targeting Pence at 2:24PM, someone (probably Nick Luna) rushed into Trump’s dining room and told him Pence had been moved to a secure location. “So what?” Trump said as his Vice President was hearing chants of “hang Mike Pence” from Trump’s rioters.

Trump wants to boot this past not just the election, but also the aftermath.

Perhaps Trump just wants to leave open the possibility of never responding. If he wins, Judge Chutkan would have very few tools to enforce her deadlines, even in the two months before Trump was inaugurated.

Or perhaps Trump doesn’t want to address a coup strategy that he plans to reuse?

Update: I mean, how familiar does all this feel, citing how Trump laid the groundwork for his coup attempt?

  • In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends.”5
  • On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6
  • In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.”7
  • At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8
  • In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”9
  • On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.”10 The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3.

Update: As I suspected she might, Judge Chutkan gave Trump more time — just enough to get beyond the election. But not all the time he requested.

MINUTE ORDER as to DONALD J. TRUMP: Defendant’s [253] “Motion to Extend Page Limits and Time to Respond to Government’s Motion for Immunity Determinations and for Leave to File a Sur-Reply” is hereby GRANTED in part and DENIED in part. The court’s [233] Order is MODIFIED as follows: Defendant’s combined Response and Renewed Motion to Dismiss Based on Presidential Immunity is due November 7, 2024 and may include up to 180 pages; the Government’s combined Reply and Opposition is due November 21, 2024; and Defendant may file a combined Reply and Sur-Reply by December 5, 2024. Signed by Judge Tanya S. Chutkan on 10/3/2024. (zcll)

John Roberts’ Sordid Legacy: 14 Pages of Mean Tweets

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“One of the ways Trump” disseminated false claims of election fraud, Jack Smith’s immunity briefing describes, “was by Tweet, day in and day out.”

I’m still wading through Jack Smith’s immunity briefing. Later today, I plan to explain how we got here and how Trump’s lawyers will try to bury it. Then I’ll show the substance of their argument, how prosecutors plan to convict Donald Trump for attempting to steal an election without using any evidence that Chief Justice John Roberts has deemed official and therefore immune.

But first I want to talk about an utterly remarkable passage in the filing: 14 pages examining Trump’s mean tweets.

As I’ll explain in more detail later, the filing first lays out, in Part I, what evidence prosecutors plan to rely on, then sets up a legal framework to conduct this analysis, and then explains, in Part III, why the evidence laid out in the first part is not immune.

In Part III, prosecutors go both by type of evidence (for example, conversations with Republican state officials and politicians) to explain why such conduct is not immune. The section looks like this:

  • Trump’s interactions with Pence
    • Trump’s interactions with Pence were official, but presumption of immunity is overcome
    • Trump’s interactions with Pence as a running mate were unofficial
  • Trump’s interactions with officials from swing states
    • The interactions were unofficial (followed by five instances)
    • Even if they were official, the government can rebut the presumption of immunity
  • Trump’s efforts to organize fake electors
    • The effort was unofficial
    • Even if it was official, the government can rebut the presumption of immunity
  • Trump’s public speeches and tweets as a candidate
    • The statements were unofficial
      • Speeches (with analysis of the two prosecutors want to use, one in Georgia and the January 6 one)
      • Tweets
      • Other public statements
    • Parts of Trump’s statements that are official can be excised
  • Trump’s interactions with White House staff (including Eric Herschmann, Dan Scavino, Molly Michaels, and two others)
    • The interactions were unofficial
    • The government could rebut any presumption of immunity
  • Other evidence of knowledge and intent
    • The evidence was unofficial
      • Federal officials (including Bill Barr and Chris Krebs)
      • Evidence about Trump’s use of Twitter
      • Trump’s post-Administration statements
    • Even if it were official, the government could rebut any presumption of immunity

This section takes up 75 pages of the brief.

Of that, 18 pages are dedicated to analysis about Trump’s Tweets (not including the additional pages describing how they plan to explain Trump’s Twitter habits). Fourteen of those pages go through Trump’s manic Tweets from the period, each time explaining why such Tweets should not be viewed as the official acts of the President of the United States.

The section describes six ways Trump’s Twitter habit served his coup attempt:

  • Casting doubt on election integrity
  • Making false claims of election fraud
  • Attacking Republicans who speak the truth about the election
    • Al Schmidt
    • Chris Krebs
    • Rusty Bowers and four Pennsylvania State GOP legislators
    • Wisconsin Supreme Court Justice Brian Hagedorn
    • Chris Carr
    • Governor Doug Ducey, Governor Brian Kemp, and Secretary of State Brad Raffensperger
  • Exhorting people to come to January 6
  • Pressuring Mike Pence
  • Almost getting Mike Pence killed

Prosecutors don’t include all the attacks Trump made on Twitter — for example, while Section I describes his attacks on Shaye Moss and Ruby Freeman, prosecutors don’t include them in the immunity analysis. The immunity analysis instead focuses only on the people with whom, Trump might argue, he was engaged in official business by ginning up death threats against them.

John Roberts not only rewrote the Constitution to protect Donald Trump. He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter.

This is what the Chief Justice wants to protect. This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans.

Who knows whether it will work? Who knows whether these right wing Justices will go that far — to argue that even the President’s mean Tweets targeting members of his own party must be protected from any accountability?

But prosecutors personalized it.

As noted above, the 14 pages analyzing mean Tweets follows the analysis of two rally speeches, in which prosecutors first show the January 4 Georgia speech was a campaign event, and then (among other things) lay out the similarity between that speech and Trump’s January 6 one.

Among the things Trump included in both speeches was an attack on the Supreme Court:

The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095; “I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”).

Of course, the Justices can’t view that as an official act. It would be anathema to the very principles of separation of powers the Justices claim to be guarding. Plus (as noted here and elsewhere), Trump had specifically labeled his intervention in Ken Paxton’s lawsuit as done in his personal capacity. But building off how obviously unofficial this attack on John Roberts and his buddies is, it makes it all the more obvious that Donald Trump’s mean Tweets aren’t official acts either.

Though the inclusion of Trump’s attacks on them also might get these partisan hacks to think more seriously about the nearly identical exhortations Trump made on Truth Social before they decided to rewrite the Constitution in his favor.

Update: Fixed where I said that Trump intervened in Ken Paxton’s lawsuit in his official capacity–he specifically said he did so in his personal capacity as a candidate.

The “Truth” about JD Vance

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Before the Vice Presidential debate last night, I tested a hypothesis.

Hypothesis: Like Trump, JD is a sociopath.

Unlike Trump, JD is not a narcissist.

It’s a lot harder to work that to your advantage in a debate.

By that I meant that JD lies as much as Trump does, but because his ego is not as fragile as Trump’s, he would bulldoze through the same lies Trump wanted to tell without getting distracted by his own ego.

That prediction held up. JD smoothly lied over and over again. This is a man who — by description — came naturally to pitching the Iraq invasion. Occasionally (such as when Walz noted that Trump built just 2% of his wall and Mexico didn’t pay for it), Vance seemed to visibly wince about how bad the product he’s selling is. But otherwise he smoothly pitched policies that only work when they come packaged in fear-mongering and hatred. He smoothly claimed that censorship by private companies was a bigger threat to democracy than Donald Trump siccing a mob on Mike Pence.

Earlier in the day before the Vice Presidential debate, I suggested one should read Amanda Marcotte and John Ganz’ columns of the day in tandem. The columns provide a useful background to the debate.

Marcotte observed that JD Vance routinely whines about press coverage not just because he’s thin-skinned, but because that whining is viewed as strength.

In the dull world of the extremely online right, where “cat lady” is forever the sickest of burns, it is also common to mistake throwing a tantrum for strength. “Free speech” is defined as “we speak, you listen — and faint in adoration.” Live in that space long enough and you start to think that yelling at a reporter for asking a question isn’t embarrassing behavior. No, in the online MAGA world, sputtering “How dare you!” at a journalist for doing their job is regarded as a feat of strength on par with storming the beach at Normandy. It’s tempting to see Vance whining yet again and assume that he’s sorely in need of therapy. That may be so, but it’s also true that his online space is a culture where whimpering like a spoiled child is mistaken for toughness, and he’s forgotten that most people are rightfully grossed out by it.

But in a piece explaining why there’s such a real risk Trump will still win, John Ganz raised another reason why, I think, JD whines so much about the media. Ganz noted that consensus media has collapsed in America — and Donald Trump has stepped into that void, cultivating rabid support from the fragmented world of disaffected conspiracy theorists left behind.

We are accustomed still to thinking of the country at its post-War self, dominated by mass media, mass politics, the mass movement, the struggle for political and cultural hegemony, that is to say, the struggle over the definition of common sense and what is “normal.” Prime Time. Must See TV. The water cooler. That’s all gone now. We should think of the United States today as being more like the country Gilbert Seldes portrays in his classic on 1800s America, The Stammering Century, where he documents not unified nation, but a patchwork of small movements lead by “fanatics, and radicals and mountebanks,” a country of “diet-faddists and the dealers in mail-order Personality; the play censors and the Fundamentalists; the free-lovers and eugenists; the cranks and possibly the saints…Sects, cults, manias, movements, fads, religious excitements…” Trump knows how to reach those people. Democrats today, much less so. Maybe they shouldn’t even try. I certainly think pandering to that tendency in American culture isn’t good. But maybe that’s not a tendency in American culture at all, it just is American culture.

Trump and Vance thrive on the fragmentation of America created by the collapse of the media. And so they treat the media as a performance of power.

Vance attacked experts and the media over and over in yesterday’s debate, appealing instead to “common sense.” He appealed to and encouraged distrust in government. His attack on what he falsely termed “censorship” was a defense of the crackpots Trump mobilized to attack the Capitol on January 6 (and he made two implicit defenses of Russian disinformation along the way).

The second most notable moment in the debate came when Vance complained that, “The rules were you weren’t going to fact check,” when he falsely claimed the Haitians in Springfield were undocumented. It was a tell. Vance and Trump need these false claims to sow division. They need these false claims to attack rationality.

Shortly before the debate, 60 Minutes announced that Trump was going to forgo their traditional pre-election interview. After 60 Minutes made the announcement, Trump’s bouncer-spox Steven Cheung tried to spin it in a way that didn’t amount to Trump chickening out again:

Here’s what Cheung said:

  1. Hunter Biden’s laptop
  2. Nothing was scheduled
  3. CBS was going to commit the “unprecedented” sin of fact-checking Trump

There’s a tiny bit more substance on the laptop comment than the normal invocation of “Hunter Biden’s laptop” as foundational moment in Trump’s cult than there normally is. Trump is complaining that he is owed an apology because Lesley Stahl refused to report on its contents in 2020 — ignoring the question of newsworthiness! — only after she could verify it.

Trump, 78, was referring to “60 Minutes” reporter Lesley Stahl admitting to him in a 2020 sitdown that she refused to cover The Post’s bombshell Hunter Biden laptop story in 2020 because “it can’t be verified.”

I learned that from NYPost, which didn’t wait to verify the hard drive of a laptop before it misrepresented what an email said, which used a copy of the hard drive copy that had at least one email added to it after it left John Paul Mac Isaac’s custody, and which itself was based on a copying process that resulted in 62% bigger copy (measured in page size — blame prosecutors for doing that!) than the underlying laptop.

Even as Xitter, Google, and Facebook censor the JD Vance dossier stolen from a Trump staffer far more aggressively than anyone ever throttled NYPost stories about the Hunter Biden hard drive (outlets besides Xitter are fairly invoking a policy against foreign malign influence campaigns; Xitter claims it’s about Vance’s privacy), Trump is claiming he was injured because news outlets didn’t chase a laptop copy to which they were not granted access by Trump’s own lawyer.

But the function of his invocation of a hard drive that even the FBI never validated serves as the same marker it always does: Four years later, four years in which media outlets have still never found anything more than dick pics and completely legal influence peddling, merely the invocation of the hard drive serves as the foundation of an object of faith for Trump’s mob. One must believe in it even if one cannot validate it. Goodness knows, that’s what got Hunter Biden convicted on gun crimes.

Relatedly, on Monday, Judge Robert Richardson finally ruled on John Paul Mac Isaac’s defamation claims: none of his defamation claims held up (partly because he was a limited public figure, partly because most of his defamation claims never even mentioned him. Hunter Biden’s counterclaim was dismissed on statute of limitation grounds. Along with Judge Rudy Contreras’ decision, last Friday, that the disgruntled IRS agents can’t intervene in Hunter’s lawsuit against the IRS, he can include their lawyers in his claims, but cannot sue for a Privacy Act violation, the rulings close off much of what we might learn from these lawsuits.

The Hunter Biden hard drive and its aftermath will continue to serve as an untethered article of faith among those who need to believe the Bidens are more corrupt than Trump and his son-in-law.

And in that same world of faith, neither Donald Trump nor JD Vance are going to willingly participate in a venue where their false narrative of fear might be disturbed by facts.

Most people treat debate as a draw. Virtually all agree that, like almost all VP debates, it won’t make an ounce of difference in the race, because they never do. Even after admitting the latter point, though, Bulwark’s Jonathan Last assessed JD’s success in smoothly delivering those lies differently.

Vance was so good that I wonder if this debate might become a case of catastrophic success. Because tomorrow a whole bunch of people in Conservatism Inc. are going to be talking about how Vance is the post-Trump savior they’ve been waiting for.

I wonder what Donald Trump will think about that?

That’s the question I kept coming back to, all night long.

[snip]

I doubt Vance did anything meaningful to help Trump’s electoral prospects. But he absolutely helped his own prospects for 2028, or 2032, or whenever Trump leaves the scene.

Or gets pushed.

Donald Trump created his own fictional character, the successful tycoon who gets things done by firing people and exacting revenge.

JD has no such persona. He has, instead, a flawless ingratiating ability to deliver lies credibly.

The debate is not going to affect the election.

But I think JD did what he needed, for his own wildly ambitious goals: He doubled down on undermining democracy, and ratcheted up the professionalism of Trump’s attack on truth.

Update: Added the ad that Harris did of the JD non-answer.

2024 Presidential Election: The Vice Presidential Debate

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

CBS News network hosts the vice presidential debate this evening beginning at 9:00 p.m. ET.

There will be no muted mics. I guess CBS thinks we can trust the couch fucker not to talk over Coach Walz.

There will be no fact checking. Apparently CBS also thinks the faux hillbilly who has flip-flopped on stuff like his opinion of Trump won’t spout anything contrary to what he’s said before.

I’m hoping tonight’s moderators Norah O’Donnell and Margaret Brennan ask something juicy — like whether Walz’s 1979 International Harvester Scout sports a very-well maintained original paint job or if he’s had it repainted.

Or whether Vance prefers something traditional like La-Z-Boy or if he’d prefer something trendier like West Elm or Restoration Hardware when it comes to couches.

My desired topics aside, I note ever-sketchy NYT decided to attack Walz today of all days. Never mind all the racist, misogynist bullshit Vance has unloaded — the NYT is going to save democracy by insisting Walz is telling an untruth rather than misstating what happened 35 years ago when he was abroad.

Tim Walz Said He Was in Hong Kong in 1989 During Tiananmen. Not True.

Mr. Walz taught at a high school in China as part of a program sending American teachers abroad, but he did not actually travel to the country until August 1989.

By Danny Hakim and Amy Qin

Oct. 1, 2024 Updated 6:36 p.m. ET

Ugh. Like the tensions inside China weren’t high and sensed across all east Asia back then.

Couldn’t leave the NYT’s endorsement of Harris without some both-sides-ing.

~ ~ ~

This thread is dedicated to this evening’s debate. Please stay on topic, thanks.

As Kamala Harris Passes the Two-Thirds Mark, Trump Adopts Apocalyptic Language

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I continue to track the asymmetric pace of the campaigns of Donald Trump and Kamala Harris. Today is another milestone for the Vice President.

As of today, Donald Trump has <5% of his campaign left (36 days of 721).

As of today, Kamala Harris has a third of her campaign left (36 days of 107).

Back on August 17, I laid out six things that could destabilize the race. We’ve gotten versions of four of those, though without yet serious impact on the race.

  • There were no mass protests at the DNC. Neither, however, was there someone speaking for Palestinian people from the Convention podium.
  • With the assassination last week of Hassan Nasrallah and Israel’s expanding operations against Iranian proxies in Lebanon and Yemen, we have seen unforeseen escalation in the Middle East. Joe Biden seems incapable of understanding that Bibi Netanyahu was never a good faith negotiator. On top of the instability this will bring (and the ongoing threat of Iranian violence targeted at Trump), I worry that Harris’ choice to prioritize Republican endorsements over Palestinian speakers could harm her in Michigan (as Elissa Slotkin issues warnings about Michigan).
  • We did get a superseding indictment in Trump’s January 6 case (though without any new charges), but Trump succeded in delaying sentencing in his NY case. We may find out this week whether we’re going to get to see a redacted version of Jack Smith’s argument that Trump is not immune; indeed, given how Judge Tanya Chutkan issued a deadline for noon tomorrow, we may even see the argument itself this week. If we do, Trump’s attacks on Mike Pence will be at the center of the argument. Remember: Trump’s increasing fascistic language over the weekend has come after he got a first look at Smith’s argument, and his lawyers seem terrified of some of the claims made by witnesses that could get unsealed.
  • Kamala Harris did have a historically successful debate, but it has done little more than bump polling, slightly. That said, her campaign continues to goad Trump to make him look weak, most recently in a national ad and plane advertisement at the Alabama-Georgia game yesterday. Whether or not Harris pushes him to accept a second debate, the continued goading seems to keep him unbalanced. In recent campaign appearances, Trump has denied he fell into her trap at the debate, directly addressed rally-goers who were leaving (denying they were leaving), and freaked out about a fly.
  • Whatever the cause, Trump is increasingly unhinged in public appearances, though much of the press continues to sanewash his coverage. More and more, his rants adopt fascist language, such as yesterday when he either endorsed The Purge or Kristallnacht. Donald Trump looks weak and Donald Trump looks violent, but that is not yet a persistent news coverage theme (indeed, in his polling update, Nate Silver claims there’s nothing “like Joe Biden’s deteriorating public performances” that might be affecting the race in ways polling is not accounting for). If the press does begin to capture Trump’s weakness and violence, it may impact the race — but I’m not holding my breath.
  • Trump’s right wing running mate has drummed up terrorist threats against his own constituents in Springfield, OH, and more recently drummed up threats against a beloved Pittsburgh restaurant (while trying to tamp them down). We have not yet gotten right wing violence, neither localized nor mass. But understand that the far right Christian nationalists that Trump has been cultivating, most notably with JD Vance’s appearance with Lance Wallnau, have been an absolutely central factor in past political violence, including January 6. When Donald Trump mobilizes Christian imagery, he does so not because he believes in any of it, but because he believes in power, and he knows he can get people who mistake him for the Messiah to go to war for him. (An Evangelicals for Harris group just rolled out an ad interspersing Billy Graham warnings of the anti-Christ with clips of Trump.) We have not yet seen political violence against marginalized groups, but Trump is doing everything that has fostered it in the past. Nevertheless, most horserace journalists are ignoring that, just like they and their colleagues dismissed the risk of political violence in advance of January 6.

In my earlier post, I said we should be unsurprised by a Black Swan event (I suggested all-out war was one possibility, and given the escalation in the Middle East, it remains one).

The floods caused by Helene could be another. Right wingers are already trying to ensure this works like Katrina did for George W Bush. And whatever else, the flooding disproportionately affected the rural areas that Trump needs to win North Carolina (though North Carolina voters can forego voter ID requirements under an emergency exception). That said, the Helene response may also highlight two things — FEMA and NOAA — that Project 2025 aims to defund. Tennessee Governor Bill Lee’s attempt to forgo federal help may provide a contrast that shows how Federal help can make a difference in a catastrophe. And a whole bunch of conservative people just got bowled over by the impact of climate change, hundreds of miles from the nearest coast. If the Feds can respond to the damage on I-40 like they did to the I-95 or the Francis Scott Key Bridge disaster, it may convince people in North Carolina that the government can too do something good.

Against that background, small shifts continue that could have significant payback in days ahead. As noted, Kamala has significantly cut Trump’s lead in perception of who will best manage the economy, and that happens as more good economic news rolls in. That’s where the horserace journalists are looking instead of Trump’s apocalyptic rhetoric. That measure, at least, is moving in a positive direction.

Tomorrow marks two key events: a Vice Presidential debate that may prove more momentous than prior debates (and JD is much more resilient to goading than his boss is), and Jimmy Carter’s 100th birthday, one day closer to the day he can vote for Kamala Harris.

May Jimmy Carter live to see the first woman elected President.

The Other Problematic Subject Trump Hid

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

In this post:

Overview
Russia’s involvement
H. R. McMaster’s observations
Olivia Troye’s observations

~ ~ ~

Overview

Before the September 10th presidential debate, did you notice Trump and his campaign never backed off on the Arlington National Cemetery brouhaha?

Did you notice they actually leaned into their desecration of the cemetery with a campaign event?

The profanement of war dead is a taboo which would have ended other politicians’ campaigns and political careers. Why did the Trump campaign continue so firmly in this direction?

Did you notice how much this offensive behavior sucked up attention from Trump’s other deficits as a candidate and a human being?

Did you notice how much less we were laughing at his campaign after ANC but before Trump’s disastrous debate performance?

The violation of regulations and norms at ANC appear to be redirection: if the candidate and campaign act out badly enough, the subject is changed. The left would stop laughing at him.

Trump’s campaign tried to flip the public’s perspective of the ANC to make Trump the victim. They found Gold Star family members willing to stick their necks out for him to rationalize the offensive behavior. Very DARVO if you think about it; his campaign abused the law, norms, the rights of others, he walked on the graves of war dead for his own benefit, but somehow he’s the victim.

But again, this was and is redirection. What have they been trying so damned hard to hide? It’s something far worse than desecrating a national cemetery for war dead, violating regulations and assaulting a federal employee in the process.

Is Trump responsible for those killed in Afghanistan during his administration and through the withdrawal during Biden’s first year in office because of his negotiations with the Taliban and his subsequent hurried order to withdraw?

Is it because both former Homeland Security and Counter terrorism advisor to Mike Pence Olivia Troye spoke out at the Democratic National Convention decrying Trump’s leadership?

Is it because Trump’s former National Security Advisor H. R. McMaster published a book released within days of the brouhaha at the ANC – a book in which Trump and his White House appear to be unfocused, unserious, and in thrall to hostile foreign nations?

Is it because Troye and McMaster know exactly how much blame Trump personally bears for those Gold Star dead on whose graves he campaigned?

~ ~ ~

Russia’s involvement

Many of you read Marcy’s post about Trump’s effort to hide his attempt to assassinate Mike Pence on January 6. Special Counsel Smith likely has all he needs for prosecution, but Trump doesn’t want his voters to know more about his threats to Pence’s life.

I believe Trump is also trying to hide something more from his potential voters: his role in the losses experienced up to and during the U.S. final pullout from Afghanistan. He may have been badly played by joint efforts by Russia and the Taliban, ultimately damaging the U.S. military’s efforts to depart in an orderly fashion without U.S. troop and coalition force casualties while leaving a functional Afghanistan government behind.

I’m sharing a partial timeline at this link which includes events related to Afghanistan during Trump’s term in office.

One thing stuck in my craw back when we tried to crowd source a timeline about a then-unknown issue an unidentified whistleblower reported about in 2019.

Why the hell was Russia so deeply engaged in the US-Taliban negotiations? It stuck out like a sore thumb to me. Unfortunately the media’s attention was swept away by the revelation of Trump’s attempted quid pro quo with Ukraine’s Volodymyr Zelensky.

After so many troops had been killed by Taliban, attributed to cash bounties offered by Russia, why was Russia involved in negotiations?

There was push back about Trump inviting the Taliban to Camp David to negotiate a deal – a move which would have legitimized the Taliban – thereby preventing Trump from going through with the invitation.

Did Putin encourage Trump to extend this invitation in order to undermine U.S. foreign policy, making us look weak enough to cave to a terrorist organization?

Why has this issue not been revisited by the media instead of going on and on for years now about Biden’s execution of the exit from Afghanistan?

When talking heads complained Biden should have either refused to honor Trump’s agreement and extend the exit past August 31, did they take into consideration possible traps which may have been set up by then-Secretary of State Mike Pompeo and Vladimir Putin should the agreement not be effected as negotiated?

Granted, while Pompeo was negotiating with the Taliban and Russia over the terms of the US’s exit, there had been a little problem with an Iranian missile launch which failed and John Bolton’s departure from his role as Director of National Intelligence. Perhaps the media’s attention was redirected by these events as much as the brouhaha building over a then-unknown whistleblower and their complaint.

And yet after all the tension over Russia’s interference in the 2016 election and the subsequent investigations, the apparent inclusion of Russia in the Afghanistan exit negotiations received scant attention.

Why is this not a topic for discussion now, when the guy ultimately responsible for the terms of withdrawal is running again for office?

The same guy who signed off on the agreement having made no effective response to troop deaths after Russian bounties were reported?

~ ~ ~

H. R. McMaster’s Observations

During the September 10 debate, Kamala Harris demonstrated just how easy it is to manipulate Trump. She brought up one of his obvious obsessions and he fell for it like Wile E. Coyote tripping into Road Runner’s Acme-branded holes.

It wouldn’t take much for Putin to do the same thing repeatedly. He’s had plenty of time and resources to learn about Trump’s narcissistic foibles and he’s likely applied this knowledge on a regular basis.

I’ve been reading H. R. McMaster’s latest book, “At War With Ourselves.” I must point out that McMaster isn’t a reliable narrator; it’s not clear if he played a game with the meaning of “collusion” or if he genuinely believed Trump didn’t collude with Russia in order to win the 2016 election.

But McMaster’s recollection of the Trump White House’s toxicity, riddled with internecine drama like Henry VIII or Louis XIV’s court, depicts a weak leader manipulated by many both inside the White House and out.

You can experience the flavor of the problem through Nicolas Niarchos’s review for The New York Times in which he describes how China’s Xi bent Trump over:

As McMaster writes in “At War With Ourselves,” the president could sometimes be kept on the straight and narrow with a clever dose of reverse psychology (Xi Jinping wants you to say this, Xi Jinping wants you to say that). But just as often, McMaster shows Trump to have been an unpredictable waffler who undermined himself to the advantage of his competitors on the world stage.

In November 2017, President Trump visited China on the third leg of a 13-day trip around Asia. It was his “most consequential” destination, McMaster explains. As they flew to Beijing, he warned Trump that Xi would try to trick him into saying something that was good for China, but bad for the United States and its allies. “The C.C.P.’s favorite phrase, ‘win-win,’” he recalls telling his boss at one point, “actually meant that China won twice.”

Trump seemed to hear him, but in the Great Hall of the People, the president strayed from his talking points. He agreed with Xi that military exercises in South Korea were “provocative” and a “waste of money” and suggested that China might have a legitimate claim to Japan’s Senkaku Islands. McMaster, his stomach sinking, passed a note to Gen. John Kelly, the chief of staff: Xi “ate our lunch,” it read.

McMaster described Putin’s effort to influence Trump during the 2017 G20 summit. Putin pressured Trump on shipments of Javelins to Ukraine, the same kind of arms shipments which were a bone of contention during the RNC’s efforts to draft a platform in 2016, and again during the run-up to Trump’s quid pro quo attempt with Ukraine’s Volodymyr Zelensky.

To appeal to Trump’s optimistic interpretation of the U.S.-Soviet alliance during World War II, Putin showed Trump a video of Russia’s Northern Fleet salvaging the USS Thomas Donaldson, a 7,200-ton Lend-Lease ship that a German U-boat had sunk in the arctic in 1945, before it could deliver its cargo of Sherman tanks. The idea was to evoke the memory of the United States and the Soviet Union as allies during World War II and to keep alive the pipe dream of conciliation with Putin’s Kremlin as the best way to advance both countries’ interests.

Putin used his time with Trump to launch a sophisticated and sustained campaign to manipulate him. Profilers and psychological operations officers at Russia’s intelligence services must have been working overtime. Even as the meeting stretched into its second hour, Putin did not run out of material. To suggest moral equivalence between U.S. interventions in Latin America and the Russian invasion of Ukraine, Putin cited the “Roosevelt Corollary” to the Monroe Doctrine, a foreign policy declaration by U.S. president Theodore Roosevelt in 1904–5 stating that the United States could intervene in a country’s internal affairs if that country were engaged in chronic wrongdoing.

At the dinner later that evening, as the two leaders squared off for a long conversation, Putin handed Trump a list of ideas for collaboration, including the development of an amusement park near Moscow. I wondered if Putin hoped the list would leak, or if he planned to leak it later, to revive stories of Trump’s failed pursuit of business deals in Russia, feed the Russian collusion narrative, weaken Trump, and divide Americans further. (188-189)

It’s unfortunate for us that McMaster was no longer NSA when Trump met with Putin in Helsinki in July 2018; he might have written about that as he did the 2017 G20. We can only imagine how much worse Putin’s discussion with Trump was in Helsinki if Putin felt he’d achieved some success with his G20 ratcheting on Trump’s weaknesses.

What’s infuriating and frustrating about this text is McMaster’s dismissive attitude about “Russiagate” and allegations of “collusion” which he blames for increasing Trump’s defensiveness on a number of topics – but as already noted, this is what makes McMaster unreliable as a narrator.

And yet McMaster’s conflict about the intimacy of Trump’s relationship with Putin may have been the last straw leading to his termination as NSA.

JUST A few days after Russian assassins deployed the nerve agent in Salisbury, poisoning Sergei Skripal and his daughter, a story appeared in the New York Post with the headline “Putin Heaps Praise on Trump, Pans U.S. Politics.” When I walked into the Oval Office that evening, on another matter, the president had a copy of the article and was writing a note to the Russian leader across the page with a fat black Sharpie. He asked me to get the clipping to Putin. I took it with me. When I got home that night, I confided to Katie, “After over a year in this job, I cannot understand Putin’s hold on Trump.”

News was breaking about the poisoning in England, and I was certain that Putin would use Trump’s annotated clipping to embarrass him and provide cover for the attack. The next morning, I stuck to procedures and gave the clipping to the White House Office of the Staff Secretary, which manages any paper coming into and out of the Oval Office. I asked them to take their time clearing it and to come back to me before sending it to Putin via his embassy in Washington. Later, as evidence mounted that the Kremlin and, very likely, Putin himself had ordered the nerve agent attack on Skripal, I told them not to send it.

I told Trump, “Mr. President, do you remember the article and note you told me to send to Putin? I didn’t send it. Putin would almost certainly have used the note to embarrass you, alleviate pressure over the Skripal incident, and reinforce the narrative that you are somehow in the Kremlin’s pocket.”

Trump was angry. “You should have done what I told you to do, General.” “Mr. President, you can be angry at me, but you have to know that I was acting in your interest.” (308-309)

How often had Trump sent mash notes to Putin during his term in office? Was he sending them even during McMaster’s tenure as NSA but through another contact?

What were the prompts for these missives? Did any exchanges between Trump and Putin out of the public’s eye shape Trump’s agreement with the Taliban and the subsequent withdrawal from Afghanistan?

Did Trump have any exchanges like this which may have led him to take no action as U.S. troops were killed after it was learned Russia offered bounties on our service persons serving in Afghanistan?

Has Trump been sending mash notes to Putin even after leaving office through other contacts?

~ ~ ~

Olivia Troye’s observations

McMaster waited until three years after the U.S. exited Afghanistan to share his experience working in Trump’s White House. Publication date of his book was August 27, 2024 — three days before the third anniversary of the U.S. exit from Afghanistan and the day after Trump and his campaign violated ANC regulations profaning war dead.

Olivia Troye didn’t wait; her speech at the DNC convention this August wasn’t her first public statement about Trump’s foreign policy and general leadership. Two months after she left her role in 2020, she unloaded on the Trump administration particularly on Trump for his narcissistic approach to protecting the nation as the COVID pandemic unfolded.

She not only wrote a pointed Twitter thread but published a campaign video in which she as a lifelong Republican said she was voting for Joe Biden after her experience working in the Trump administration.

She unloaded again ten days before the last U.S. troops left Afghanistan in 2021, in response to ill-informed smears by right-wing mouthpieces, some of whom had been obstructive about the Special Immigrant Visa program (SIV) which should have helped more Afghan allies enter the U.S.

Olivia of Troye @OliviaTroye

🧵There were cabinet mtgs about this during the Trump Admin where Stephen Miller would peddle his racist hysteria about Iraq & Afghanistan. He & his enablers across gov’t would undermine anyone who worked on solving the SIV issue by devastating the system at DHS & State.(1/7)

11:29 AM · Aug 20, 2021

I tracked this issue personally in my role during my WH tenure. Pence was fully aware of the problem. We got nowhere on it because Trump/S. Miller had watchdogs in place at DOJ, DHS, State & security agencies that made an already cumbersome SIV process even more challenging.(2/7)

11:29 AM · Aug 20, 2021

I met w/ numerous external organizations during my White House tenure who advocated for refugees & pleaded for help in getting US allies through the process. I got the phone calls & letters as the homeland security & CT advisor to Pence…(3/7)

11:29 AM · Aug 20, 2021

The system wouldn’t budge, regardless of how much this was argued about in National Security Council mtgs. The Pentagon weighed in saying we needed to get these allies through the process-Mattis/others sent memos. We all knew the urgency but the resources had been depleted.(4/7)

2:08 PM · Sep 17, 2021

The fear of people across the Trump Admin to counter these enablers was palpable. There were numerous behind closed door meetings held-strategizing how to navigate this issue. The Trump Admin had FOUR years…(5/7)

11:29 AM · Aug 20, 2021

..Trump had FOUR years-while putting this plan in place-to evacuate these Afghan allies who were the lifelines for many of us who spent time in Afghanistan. They’d been waiting a long time. The process slowed to a trickle for reviews/other “priorities”-then came to a halt.(6/7)

11:29 AM · Aug 20, 2021

To people like Ben Domenech, JD Vance & others who are making blanket statements & pushing narratives of convenience on Afganistan-especially on the SIV/allies issue-please, just stop. Your comments are uninformed & also hurtful. We see right through you.(7/8)

11:29 AM · Aug 20, 2021

Grateful for everyone advocating the urgency of getting our allies evacuated out of Afghanistan ASAP & those who are doing everything they can to help. It’s the least we can do for these individuals & it’s a matter of national security. The world is watching.(8/8)

11:29 AM · Aug 20, 2021

By the time Troye wrote this there were roughly 2300 U.S. troops on each of three shifts protecting the remaining facilities and personnel – a number wholly disproportionate to the number of Afghan fighters Trump’s agreement with the Taliban released from Afghan government detention.

There simply weren’t enough personnel to do everything well, thanks directly to Trump.

There were aggravating circumstances with the Taliban violating the agreement, thanks to Trump.

There was ample frustration trying to help Afghan citizens who’d helped the U.S. thanks to Trump allowing his little racist attack dog Stephen Miller to undermine the exit.

It would be nice if any credible journalist with experience covering defense and active war zones ever asked Olivia Troye if she observed any difficulties added to the withdrawal from Afghanistan by Russia or its proxies, or other hostile foreign nation, in addition to the obstructions created by Trump’s worst minions.

It’d be nice if journalists asked Troye if she ever observed exchanges as McMaster did, between the White House and Russia which were not made known to the public but were not classified.

Taking both Troye’s and McMaster’s observations into consideration, Trump fucked up Afghanistan for the sake of his re-election campaign and possibly ego stroking by Putin, leaving Biden a massive mess to clean up just as he fucked up the pandemic response. In both cases Americans died because of Trump’s fuckery.

And Trump had zero problems kissing Putin’s ass along the way.

~ ~ ~

Once again, the question: which part of this related to Afghanistan did Trump and his campaign believe needed to be obscured so badly they were willing to profane American war dead to that end?