Cotton Swabs and Grievance Myths: Do Not Invite Republicans to Express Support for Kash Patel’s Witch Hunts

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I want to elaborate on some points I made in a Bluesky exchange I had with Greg Sargent about his post on the Barry Loudermilk report referring Liz Cheney for investigation yesterday. It was, I hope, a civil and substantive exchange (multiple people have mentioned it since), and for that I want to thank Sargent.

But I wanted to explain some points I tried making at more length.

Sargent’s post noted — and he’s right — that Trump’s embrace of Loudermilk’s report discredits false assurances Senate Republicans have offered that Kash Patel won’t pursue political witch hunts if confirmed as FBI Director.

Barely moments after Donald Trump announced that he’d chosen loyalist Kash Patel as FBI director, Republicans stampeded forth to insist that this in no way means Trump will unleash law enforcement on his enemies, even though Trump himself has threatened to do so. Senator John Cornyn suggested such threats were only for “public consumption.” Senator Rick Scott said Trump is “not gonna do it.” And Representative Dan Meuser scoffed that the very idea is “nonsense.”

These lawmakers should take a moment to consult Trump’s Truth Social feed. At 3:11 a.m. on Wednesday, demonstrating characteristic emotional balance, Trump posted this reaction to a new report from a House subcommittee chaired by GOP Representative Barry Loudermilk, which recommends that the FBI investigate former GOP Representative Liz Cheney over her role in the House’s January 6 inquiry:

Liz Cheney could be in a lot of trouble based on the evidence obtained by the subcommittee, which states that “numerous federal laws were likely broken by Liz Cheney, and these violations should be investigated by the FBI.” Thank you to Congressman Barry Loudermilk on a job well done.

Note the trademark mobspeak here: Cheney could be in a lot of trouble for federal lawbreaking, Trump declares, as if he’s merely a passive observer remarking on the danger she faces, rather than someone who will control the nation’s sprawling federal law enforcement apparatus in just over a month. Trump has been raging at Cheney for years and has amplified suggestions that she should face televised military tribunals.

Now, in a dark turn in this whole farcical saga, Trump is pretending that House Republicans have given him a legitimate basis for prosecuting Cheney, when in fact their claims were cooked up in bad faith for precisely that purpose.

Sargent argues that the press should “hound[ GOP Senators] mercilessly” on whether they’ll still support Kash after Trump’s endorsement of Loudermilk’s report.

Trump’s veiled threat toward Cheney should prompt the press to revisit those reassurances from Republicans. GOP senators should be hounded mercilessly by reporters on whether they’ll knowingly support Patel now that Trump has made the corrupt reality of the situation so inescapably, alarmingly clear.

If we lived in a world where Republican hypocrisy could be shamed, where journalists had the skill to manage such an exchange, that would be worthwhile.

We don’t live in that world.

Trying to budge Republicans from their reassurances would backfire.

Here’s why.

First, consider the utter incompetence of most journalists this side of Mehdi Hasan to handle such an exchange.

I’ve been tracking a right wing technique I’ve dubbed “Cotton swabs” (because Tom Cotton is a skilled practitioner in the technique). In it, when Republicans get asked these kind of gotcha questions by Manu Raju in the hallway or by Kristen Welker on a Sunday show, they instead flip the gotcha on its head, using it as an opportunity to air unrebutted propaganda. And the journalist is left as a discredited prop in Trump’s assault on the press.

For example, when Welker recently asked Trump if he would, in the interest of unifying the country, concede he lost the 2020 election, Trump not only refused to concede he lost, but he used the question to blame Biden that the country was divided, and then — with absolutely no pushback from Welker — lied about Joe Biden weaponizing DOJ to go after him, Trump. (The exchange introduced precisely the same kind of false reassurance that Sargent called out.)

KRISTEN WELKER:

Yes. And sir, I don’t have to tell you this, because you’ve talked about it. It comes at a time when the country is deeply divided, and now you’re going to be leading this country for the next four years. For the sake of unifying this country, will you concede the 2020 election and turn the page on that chapter?

PRESIDENT-ELECT DONALD TRUMP:

No. No, why would I do that? But let me just tell you —

KRISTEN WELKER:

You won’t ever concede —

PRESIDENT-ELECT DONALD TRUMP:

– when you say the country is deeply divided, I’m not the president. Joe Biden is the president.

KRISTEN WELKER:

But you’re going to be the president.

PRESIDENT-ELECT DONALD TRUMP:

No, no. I’m not the president. So when you say it’s deeply divided, I agree. But Biden’s the president, I’m not. And he has been a divider. And you know where he divided it more than anything else, and it probably backfired on him. I think definitely is weaponization. When he weaponized the Justice Department and he went after his political opponent, me. He went after his political opponent violently because he knew he couldn’t beat him. And I think it really was a bad thing, and it really divided our country.

So instead of giving the harmless concession she invited, that Trump lost to Joe Biden in 2020, Trump instead hijacked Welker’s platform to lie about being a victim. She asked for something to support unity. He stoked division more, blaming the polarization of the country on Biden. Then he made false claims of grievance.

It had exactly opposite effect Welker imagined. And in the fact check NBC did after the interview? Trump’s lie about Biden weaponizing DOJ went unmentioned.

NBC treated it, a brazen lie, as if it were true.

If you want to know how Trump got elected even after being charged in two federal indictments, you might start with the way that every legacy media outlet lets lies like this go uncontested.* Always. Trump never gets fact checked on his false claims about the federal investigations into his attempted coup and stolen documents.

As a result, even newsies who watch mainstream Sunday shows might be forgiven for believing the cases against Trump were ginned up, to say nothing of the judges and lawyers, from Aileen Cannon to Bill Barr to Sam Alito, who instead pickle their brains with the propaganda on Fox News.

If journalists don’t fact check these false claims, where would voters learn differently? Where would your average voter learn that the investigations against Trump were just?

Sometimes Cotton swabs involve speaking over the questioner (a favorite technique of JD Vance [see update below for an example] and Marco Rubio). Sometimes it involves flipping the entire premise of the question. It always involves, first, a shameless refusal to disavow the outrageous Trump practice or statement. As such, these are performative moments of obeisance, reinforcing Trump’s power and the assault on truth he demands.

And on questions regarding Trump’s troubled relationship with rule of law, it always involves false claims about past DOJ practice, either denials he politicized DOJ or false claims it was politicized against him. Sometimes both!

Trump and his allies have used Cotton swabs to sneak hundreds — probably thousands — of false claims that he, and not his adversaries, was a victim of politicized prosecution onto purportedly factual news outlets with no pushback.

None.

Indeed, at least one of the underlying examples of Republicans giving reassurances about Kash that Sargent cited was itself a Cotton swab. Rick Scott didn’t just say that Trump wouldn’t launch investigations in his second term, the part Sargent quoted, he premised his answer on a false claim that Trump didn’t do so in his first term (a very common claim among Trump’s most loyal allies).

“He didn’t do it the first time. He’s not gonna do it this time,” Scott said. (Trump actually did press for prosecutions of his enemies during his first term, such as by publicly musing there should be probes of former Democratic presidential candidate Hillary Clinton, and he also pushed for a criminal investigation into a previous investigation of his 2016 campaign.)

Even with Arthur Delaney’s fact check (a rarity in the reporting of Cotton swabs), HuffPo didn’t note that Trump did more than simply demand investigations of his adversaries, he got them. A key prong of the John Durham investigation chased possible Russian disinformation exacerbated by Durham’s own fabrications to criminalize Hillary’s use of oppo research. And both Durham’s indictments presented dodgy false statement accusations as conspiracies extending to the Hillary campaign. Trump’s DOJ set up a side channel via which Biden was framed — a false allegation used to ratchet up felony charges against his son. And there’s a long line of investigations — IRS audits, DOJ IG investigations used to fire people without due process, US Attorneys ordered to pursue special investigations (including another one targeting Hillary) — that targeted Trump’s enemies.

Trump’s administration targeted his enemies all the time, via a variety of means. And yet that gets buried in the HuffPo report. What should have been an opportunity to debunk Scott’s premise was, even from a diligent journalist, an exchange that still obscured how systematically Trump politicized rule of law in his first term.

And these Cotton swabs are part of a larger process, the extended con via which Trump has gotten Republicans to hate rule of law that LOLGOP and I have been tracing in the Ball of Thread podcast. Rather than treating the Russian investigation as a welcome review of four associates all of whom were monetizing their access to Trump with foreign countries, he instead latched onto false claims he was wiretapped, making himself a victim. With the help of Kash Patel, Trump substituted the Steele dossier for the real substance of the Russian investigation, convincing most Republicans that the investigation started not from the Trump campaign’s foreknowledge of the Russian attack on Hillary, but instead from Hillary’s attempt to understand Trump’s unabashed Russian ties — that oppo research Durham would criminalize. Trump then turned on the FBI, claiming that a bunch of people who were just trying to protect the country from an attack by a hostile country were instead targeting him personally; the myth that FBI targeted him is precisely what John Cornyn internalized when he attributed his support for Kash because Kash planned, “to restore the FBI to its former reputation as a nonpartisan, no political institution, and he told me he agreed” (also part of the Delaney story). Via both his own propaganda and the Durham investigation designed to flip the script on Hillary, Bill Barr reinforced that myth of Trump grievance. And all that while the entire Republican party responded to Trump’s extortion of Ukraine by relentlessly pursuing Joe Biden’s kid to the exclusion of pursuing policy, using a fabricated bribery allegation to ratchet things up before their rematch. Think about that! Trump dodged his first impeachment by ginning up a politicized investigation of Biden and his kid, and that entire process has been memory holed!

Gone!

Poof!

And while LOLGOP and I still have several episodes to do, it is no accident that the same team that turned a hard drive of Hunter’s dick pics — a relentless campaign of revenge porn — into yet another claim that poor Donald Trump was the victim, it is no accident that that very same team turned immediately to using the Big Lie to attack the foundations of American democracy. And Trump did it again when he beat the second (impeachment) and third (criminal indictment) attempts to hold him accountable. The price of admission in today’s GOP is these moments of performed fealty, the willingness to use legitimate questions about the politicized justice Kash has promised to instead publicly adopt Trump’s false claims that he is a victim.

The entire GOP is currently built around this myth of grievance. It gets reinforced with every Cotton swab. It was Trump’s platform during the election. It was the lie he used to make a bunch of disaffected Americans believe they had something in common with a billionaire grifting off their vulnerabilities.

This is the core of Trump’s super power, the claims of grievance he manufactures to justify his assault on rule of law.

The last thing you should want is for journalists to rush out to give Republican Senators yet another opportunity to perform their obeisance to Trump and his false myths of grievance, because all it will do is reinforce the polarization Trump thrives on and do further damage to truth and rule of law.

If we’re going to break this spell, we need to go about it a different way, some of which Sargent and I also discussed with respect to Kash, some of which I laid out in an earlier post responding to something Sargent wrote.

You are not going to defeat a Kash Patel or Pam Bondi nomination by asking for promises about political investigations. As I noted in that earlier post, Democrats (and even Lindsey Graham) attempted that approach with Bill Barr, and he proceeded directly from his confirmation to turn DOJ into a propaganda factory, down to the fabricated bribery allegation against Joe Biden.

Leave the direct assault on Kash to Olivia Troye (if she remains willing), to whom Kash already provided opportunity to talk not about his past role in abusing rule of law for Trump, but instead about how he lied to the people who relied on him, up to and including Mike Pence. Troye gives Republicans reason to oppose Kash because he has harmed Republicans. If you instead focus on Kash’s past and promised politicization, you’ll just trigger more obeisance to Trump’s myth of grievance.

Luckily, with Kash, there are other ways to get at this.

The question that kicked off the entire exchange between Sargent and me, for example, was about Speech and Debate, which should protect Liz Cheney from any scrutiny even if the false claims alleged in the Loudermilk report were true. Raising the Loudermilk referral as a question about Speech and Debate has the advantage of addressing the one area that has gotten Republicans to stand up to Trump, their own prerogatives (for example, by defending advice and consent on nominations). Questions about Speech and Debate would provide cause to raise the opinion — written by Trump appointee Neomi Rao, with a concurrence from former Trump White House Counsel Greg Katsas — that extended Speech and Debate protection to Scott Perry’s plotting on the Big Lie and affirmed its application in less formal situations than Liz Cheney’s communication with Cassidy Hutchinson at the core of Loudermilk’s report.

The district court, however, incorrectly withheld the privilege from communications between Representative Perry and other Members about the 2020 election certification vote and a vote on proposed election reform legislation.

Does Kash know better than Neomi Rao about Liz Cheney’s immunity from this kind of investigation, he should be asked (whether Rao or Kash is a bigger nutball is admittedly a close question, but one that can sow some useful discomfort). Questions to Kash about whether Speech and Debate defeats Loudermilk’s referral would have a very different valence than questions about politicization, because they would carry with them the implication that if Kash can investigate Liz Cheney and Adam Schiff, Mitch McConnell will be next.

Plus, they provide cause to focus on something Senators should address anyway: Kash’s lawsuit against DOJ for his own subpoena. In addition to claiming that the subpoena targeting him and others (including Adam Schiff, though he neglected to mention that) was “a chilling attempt to surveil the person leading the Legislative Branch’s investigation into the Department of Justice’s conduct,” something also included in the scope of the January 6 Committee, Kash also made preposterous claims about the standard for subpoenas (which is why it was dismissed unceremoniously in September).

Even Kash’s legally illiterate claims won’t disqualify him with Republican Senators, but raising them gets him on the record as to his understanding of the law before he signs a bunch of orders adopting wildly different standards targeting Trump’s adversaries. Kash has made expansive claims about privacy rights and right of redress against the federal government. Fine. Let’s make aspiring FBI Director Kash Patel adhere to that standard.

But they also provide a way to point out that Kash’s targets actually aren’t Trump’s targets. Many of those on his enemies list, for example, are people, like Rod Rosenstein (the real target of Kash’s lawsuit) against whom he’s got a grudge. Trump and GOP Republicans don’t give a damn if Kash pursues Trump’s enemies. Either they’re too cynical to care, or they believe — or have to feign that they believe — that Trump’s enemies have it coming. But if Kash turns the FBI into his own personal fiefdom? Too many Republicans have been at odds with Kash to abide by that.

Finally, there’s the point I made about the Loudermilk report, after actually taking the time to read it (which no one else seems to have done). In the 39 pages of his report dedicated to DOD’s inaction, Loudermilk gets vanishingly close to accusing then Acting Secretary of Defense Christopher Miller of criminal insubordination for not deploying 10,000 members of the National Guard on January 6.

President Trump instructed the highest-ranking Pentagon official to use any and all military assets to ensure safety three days prior to January 6, 2021. The Acting Secretary of Defense concedes that external variables, such as the “Twitter sphere”, accusations of being a “Trump crony” and Representative Cheney’s Op-Ed, weighed on his mind as he determined how and whether to employ the National Guard on January 6, 2021. During this period of time, Acting Secretary Miller published his January 4 memo, with significant restrictions and control measures on the DCNG.

To date, no investigation or disciplinary action has taken place against Acting Secretary of Defense Miller for his failure to follow directives from the sitting Commander-in-Chief on January 3, 2021.

Loudermilk sources this accusation in DOD IG’s own investigation of their inaction for some very good reasons. First, the January 6 Committee revealed that what really happened is that a bunch of Trump loyalists, up to and including Mark Meadows, scoffed at the notion that Trump would march to the Capitol protected by 10,000 National Guard troops. More importantly, Kash Patel’s claims about his own involvement in this process put him right there at Miller’s side, part of the same insubordinate inaction. That’s a fiction Loudermilk needed to spin. It’s a fiction even more outrageous than his referral of Liz Cheney.

But it’s also a referral that implicates Trump’s pick for FBI Director personally. Did Kash fail the President? Or did he instead join everyone else in recognizing what it would mean for Trump to march to the Capitol?

A damn good question for a confirmation hearing.

Kash Patel’s own big mouth, past actions, and wacky legal claims provide ample material to create friction between him and Senate Republicans guarding their own prerogatives. That’s almost certainly not enough to sink his nomination, though it would be more effective than inviting Republicans to reaffirm their belief in Trump’s grievance myth. But questions about such topics may provide better material going forward to box him in.

About one thing I’m certain, though: you will get nowhere if you make this a loyalty contest. You will get nowhere if you keep framing this as an opportunity for Republicans to either reaffirm that loyalty oath, even if it entails a direct assault on rule of law, or invite an attack on themselves personally.

Virtually all GOP Senators will find a way to back Trump and his assault on rule of law. Every single time.

And given the inept media we’ve got right now, it will serve only to do more damage, reinforcing Trump’s conceit that the law is just a matter of political loyalty.

Do not give Republicans an opportunity to condemn or endorse Kash Patel’s witch hunt against Trump’s enemies. It’s the quickest way to ensure they remain unified in supporting him.

*The night after I wrote this, I woke up and remembered that CNN’s Daniel Dale had written a fairly extensive fact check about Trump going after his adversaries. The exchange with Martha Raddatz he responded to was a good example of how JD Vance talks over people to deliver his Cotton swabs, filibustering to prevent any rebuttal.

RADDATZ: Would Donald Trump go after his political opponents?

VANCE: No —

RADDATZ: He suggested that in the past.

VANCE: Martha, he was president for four years and he didn’t go after his political opponents.

You know who did go after her political opponents? Kamala Harris, who has tried to arrest everything from pro-life activists to her political opponents —

(CROSSTALK)

RADDATZ: He said those people who cheated would be prosecuted.

VANCE: — and used the Department of Justice as a weapon against people — well, he said that people who violated our election laws will be prosecuted. I think that’s the administration of law. He didn’t say people are going to go to jail because they disagree with me. That is, in fact, been the administration and the policy of Kamala Harris, Martha.

Look, under the last three-and-a-half years, we have seen politically-motivated after politically-motivated prosecution. I’d like us to just get back to a system of law and order where we try to arrest people when they break the law, not because they disagree with the prevailing opinion of the day, and there’s a fundamental difference here between Donald Trump and Kamala Harris. Donald Trump may agree — agree or disagree on a particular issue, but he will fight for your right to speak your mind without the government trying to silence you.

Kamala Harris is explicitly —

RADDATZ: Senator Vance, I —

(CROSSTALK)

VANCE: — censorship of folks who disagree with her.

RADDATZ: I want to go back to Donald Trump.

(CROSSTALK)

In response to Dale’s fact check, Trump’s campaign accused the media of a double standard because DOJ hadn’t indicted Biden or Hillary for their non-crimes.

Trump made extensive behind-the-scenes efforts to get his political opponents charged with crimes. But you don’t have to rely on investigative reporting or the memoirs of former administration officials to know that Trump went after political opponents as president.

He often went after them in public, too.

As CNN reporter Marshall Cohen has noted, there is a long list of political opponents whom Trump publicly called for the Justice Department and others to investigate or prosecute. The list includes not only 2016 election opponent Hillary Clinton and 2020 election opponent Joe Biden but also Biden’s son Hunter Biden, Democratic former Secretary of State John Kerry, Trump’s former national security advisor turned critic John Bolton, Democratic former President Barack Obama, unspecified Obama administration officials, the anonymous author of a New York Times op-ed by a Trump administration official critical of Trump, MSNBC host and Trump critic Joe Scarborough, former FBI director turned Trump critic James Comey, other former FBI officials, former British spy Christopher Steele (the author of a controversial dossier of allegations against Trump), and various congressional Democrats – including former House Speaker Nancy Pelosi, Rep. Adam Schiff of California, Rep. Ilhan Omar of Minnesota, Sen. Richard Blumenthal of Connecticut, and Sen. Mark Warner of Virginia.

Asked for comment for this article on Monday, Vance spokesperson Taylor Van Kirk accused the media of having a biased “double standard” and said “it is indisputable that under Kamala Harris and Joe Biden’s DOJ, the Republican nominee for president was targeted and indicted, while under President Trump, nothing like that ever transpired against either of the Democrats he faced off with in 2016 or 2020.”

But that wasn’t for a lack of Trump trying.

Trump repeatedly pressured the Justice Department as president to prosecute both Clinton and Biden, in addition to trying to get foreign countries to investigate Biden. That the Trump-era Justice Department declined to charge Clinton and Biden doesn’t mean it’s true that Trump didn’t “go after” them or others. (In fact, Trump literally said in 2017 that he wanted the department to be “going after” Clinton.) [my emphasis]

But even Dale, the best in the business, made no mention of how aggressively Durham investigated Hillary and her campaign and ignored that the Brady side channel led directly to the elevation of Alexander Smirnov’s attempt to frame Joe Biden, which had a role in David Weiss’ elevation as Special Counsel, which led to the felony conviction of Hunter [Dale relies heavily on CNN’s Marshall Cohen, who got the Durham investigation wildly wrong].

In 2019, Barr satisfied Trump’s investigate-the-investigators demand by tasking a federal prosecutor to help investigate the origins of the FBI’s probe related to Russia and the 2016 election. In late 2020, with about three months left in Trump’s presidency, Barr gave that prosecutor, John Durham, the status of special counsel.

And in early 2020, Barr tasked a different federal prosecutor with taking in information from members of the public, notably including then-Trump lawyer Rudy Giuliani, related to allegations about the Bidens and Ukraine, which had been a subject of Trump’s public and private focus.

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Barry Loudermilk Provides Proof of Kash Patel’s Incompetence Wrapped Up inside His Liz Cheney Referral

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As you’ve no doubt heard, Congressman Barry Loudermilk released a report that, beneath what seems to be an appendix, refers Liz Cheney for investigation because she made sure that Cassidy Hutchinson had a lawyer who represented the former Mark Meadows aide’s interests when testifying before the Committee.

Loudermilk claims obtaining witness testimony for a proceeding amounts to obstructing it and also claims Cheney — and not those who provided testimony inconsistent with other sworn documents — suborned perjury.

Based on the evidence obtained by this Subcommittee, numerous federal laws were likely broken by Liz Cheney, the former Vice Chair of the January 6 Select Committee, and these violations should be investigated by the Federal Bureau of Investigation. Evidence uncovered by the Subcommittee revealed that former Congresswoman Liz Cheney tampered with at least one witness, Cassidy Hutchinson, by secretly communicating with Hutchinson without Hutchinson’s attorney’s knowledge. This secret communication with a witness is improper and likely violates 18 U.S.C. 1512. Such action is outside the due functioning of the legislative process and therefore not protected by the Speech and Debate clause.

The Federal Bureau of Investigation must also investigate Representative Cheney for violating 18 U.S.C. 1622, which prohibits any person from procuring another person to commit perjury. Based on the evidence obtained by this Subcommittee, Hutchinson committed perjury when she lied under oath to the Select Committee. Additionally, Hutchinson was interviewed by the FBI as part of its investigation into President Trump. This Subcommittee sought a copy of the FBI report 302, documenting this interview and Hutchinson’s statements, but the FBI has refused to produce this vital document. The FBI must immediately review the testimony given by Hutchinson in this interview to determine if she also lied in her FBI interview, and, if so, the role former Representative Cheney played in instigating Hutchinson to radically change her testimony.

Loudermilk’s tribute to Kash Patel’s leadership

Before Loudermilk delivers his welcome wagon for aspiring FBI Director Kash Patel, however, he provides solid evidence that Kash Patel is not fit to be FBI Director.

It turns out that the longest section of his report — 39 pages as compared to 36 for the Cassidy and Liz section — lays out how top DOD officials misrepresented their decisions regarding the National Guard leading up to and on January 6.

Just five pages of that pertain to Christopher Miller’s inaction on what Loudermilk treats as a legitimate request from Trump to have 10,000 National Guard in DC (Loudermilk doesn’t lay out the testimony from top Trump aides nixing that idea, based in part on a fear that Trump wanted an armed guard to accompany him to the Capitol).

But the rest has to do with delays created in deploying the Guard after the riot started. It has long been clear that DOD was blowing smoke about their claimed actions that day. On its face, this part of Loudermilk’s report is fair pushback to DOD’s past unpersuasive claims. He even sneaks some quasi-referrals — whether to aspiring FBI Director Kash Patel or aspiring Secretary of Defense Pete Hegseth, it’s not clear — for Miller and Ryan McCarthy into his report.

To date, no investigation or disciplinary action has taken place against Acting Secretary of
Defense Miller for his failure to follow directives from the sitting Commander-in-Chief on
January 3, 2021.

[snip]

To date, no investigation or disciplinary action has taken place against Secretary of the Army Ryan McCarthy for his failure to relay the Acting Secretary of Defense’s lawful deployment order at 3:04 PM on January 6, 2021.

[snip]

To date, no investigation or disciplinary action has taken place against Secretary of the Army Ryan McCarthy for deceiving congressional leadership with false statements regarding the delay in deployment of the D.C. National Guard to the U.S. Capitol on January 6, 2021.

The referrals are kind of interesting because McCarthy, at least, is on Kash’s dated and disorderly enemies list.

Mind you, if McCarthy was at fault for his January 6 response, it suggests there was something real to be at fault for. Maybe that’s why these referrals are snuck into the longest section of the report?

What’s most interesting, however, is Loudermilk’s picture of the DOD leadership that failed.

Someone — DOD’s then Acting Chief of Staff at the time — is missing.

Indeed, Kash’s name doesn’t show up anywhere in the 128-page report. Kash is a no-show even though, in the immediate wake of the insurrection, he had a great deal to say to Vanity Fair about his personal involvement in the two issues for which Loudermilk faults DOD.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.The implication: Either Trump was shell-shocked, effectively abdicating his role as commander in chief, or he was deliberately stiff-arming some of his top officials because he was, in effect, siding with the insurrectionists and their cause of denying Biden’s victory.

As for Mike Pence, Miller disputed reports that the vice president was calling the shots or was the one who sent in the Guard. The SECDEF stated that he did speak with Pence—then in a secure location on the Hill—and provided a situation report. Referring to the Electoral College certification that had been paused when the mob stormed the building, Miller recalled Pence telling him, “We got to get this thing going again,” to which the defense secretary replied, “Roger. We’re moving.” Patel, for his part, said that those assembled in Miller’s office also spoke with congressional leaders Nancy Pelosi, Chuck Schumer, and Mitch McConnell. “We were called upon to do our job, and we executed because we had the reps and sets built into our process to get the troops where they were requested, to put up a fence, to secure a perimeter, and to help clear the Capitol compound. I mean, that’s just what we do.”

Some of what Kash said to Vanity Fair somewhat resembles Kash’s testimony to the January 6 Committee.

Although look forward to discussing these events in detail, I would like to make three things clear at the outset — excuse me — at the outset:

One, the actions the DOD took before January 6, 2021, to prepare for the planned protest in Washington, D.C., on January 5th and 6th, 2021, were appropriate, supported by requirements, consistent with the DOD’s roles and responsibilities, and compliant with laws, regulations, and other applicable guidance; two, the DOD’s actions to respond to the United States Capitol Police request for assistance on January 6th, 2021, were appropriate, supported by requirements, consistent with the DOD’s roles and responsibilities, and compliant with the laws, regulations, and other applicable guidance; and, three, DOD officials did not delay or obstruct the DOD’s response to the United States Capitol Police request for assistance on January 6th, 2021.

These are not just my words but, in fact, the findings of the DOD’s independent inspector general under President Biden’s administration. The IG’s November 16, 2021, report has marked has been marked as exhibit 3, I think.

But when January 6 Committee staffers asked the now-aspiring FBI Director about the Vanity Fair article itself he got … squirmy. His testimony to J6C was inconsistent with both what he told Vanity Fair and what Loudermilk lays out in his report.

A Oh, so you remember stuff like that. So, going off just the memory, and we can go back to the article when you bring it up, there was a meeting with the President of the United States, Acting Secretary Miller, and some others — I can’t recall off the top of my head where we were discussing, as the article states, something related to Iran.

And, in that same meeting, I believe it was on or around January 4th, 3rd, 4th, or 5th, the -as I stated earlier, in order for the Department of Defense’s National Guard to 11 be activated in any way we needed Presidential authorization. And President Trump at that

[Discussion off the record.]

Q sure. Go ahead.

A Okay. And so this question appears to implicate core executive privilege concems. I’m prepared to answer it, but I want the record to reflect my serious concerns about congressional overreaching of this matter.

So what I remember is that we knew, in order to get the National Guard even mobilized, we needed the President to at least say yes first. So what — my recollection of that meeting is the President preemptively authorized 10 to 20 National Guardsmen and-women around the country sorry? 10- to 20,000.

[snip]

Q Do you remember if the President mentioned anything that he may need these 19 troops to protect the Trump people?

A don’t recall him ever saying that.

Whichever Kash story you believe, however, both stories put Kash in the center of everything. Both stories claim he had the ability to directly affect all of the failures Loudermilk lays out (which might also explain why DOD’s story about January 6 is so unpersuasive).

If Kash was right there at the center of the story of DOD’s failures leading up to and on January 6, as told by Barry Loudermilk, then Loudermilk would have to include him, the aspiring FBI Director, among the referrals for investigation.

Perhaps that’s why Loudermilk instead just disappears the aspiring FBI Director: to avoid referring him to the aspiring FBI Director for accountability for his failures on that day?

How Barry Loudermilk covers up his own coverup

Which brings us to Loudermilk’s own coverup.

Loudermilk has been fluffing Trump’s non-response for some time as in this report, when he shows no interest in the Commander in Chief’s inaction that day.

Rather than dwelling on Trump’s demonstrable inaction, including in accelerating the Guard deployment, Loudermilk claims there was a witness present that day who would have heard if (as Hutchinson testified) Trump had cheered the taunts of “Hang Mike Pence,” rather than (as Jack Smith described) Nick Luna testifying that Trump simply said, “So what” when told Pence was evacuated.

Loudermilk puts great stock in this witness being better situated than Hutchinson to hear what Trump was saying.

This individual was within earshot of President Trump the entire time the President was in the President’s Dining Room. Additionally, in its investigation, the Subcommittee spoke with numerous individuals who worked closely with Meadows in the White House, and they confirmed that Meadows would not react apathetically to calls for violence, nor repeat an incident like the one alleged by Hutchinson so carelessly in a public space.

Only, this appears to be the area where Loudermilk was dealing with incomplete information. As Kyle Cheney first pointed out, Loudermilk released a redacted copy of what appears to be this person’s transcript.

But Jack Smith released an unredacted fragment of that transcript.

The transcript suggests Trump was far more entranced with the mob than Loudermilk wants to admit.

Loudermilk excuses his own gaps in knowledge by accusing Jack Smith of … collusion.

Chairman Loudermilk and the Subcommittee have uncovered evidence of collusion between the Special Counsel Jack Smith—the prosecutor appointed by Attorney General Merick Garland to conduct two separate criminal investigations into President Trump207—and either the White House or the Select Committee. On October 18, 2024, Special Counsel Smith released some of the documents used in his filing against President Trump.208

Among the released documents was an unredacted version of the transcript of a Select Committee interview with a certain White House employee. 209 Given that the Select Committee did not archive, or otherwise destroyed this transcript, and that the White House refused to provide an unredacted version to the Subcommittee, the only remaining explanation is that Special Counsel Smith received the unredacted version from one of the two institutions which did not cooperate fully with the Subcommittee.

207 Press Release, U.S. DEP’T OF JUST., Appointment of a Special Counsel (Nov. 18, 2022).

208 April Ruben, More docs unsealed in Jack Smith’s Jan. 6 case against Trump, AXIOS (Oct. 18, 2024).

209 Kyle Cheney (@kyledcheney), X (Oct. 18, 2024, 11:45 AM).

We may find out soon enough how Jack Smith got an unredacted transcript that Loudermilk did not get. But he’s wrong that they’re the same transcript. They’re paginated differently (what is page 38 on Loudermilk’s copy is page 30 on Smith’s). Which ought to be a hint to Loudermilk’s crack team: the transcript is sourced differently, which may prove that January 6 committee didn’t destroy evidence he accuses them of destroying.

Plus, the point remains: Loudermilk’s own excuses for Trump’s inaction look different in light of more fulsome evidence, which shows Trump was entranced by the riot as soon as he returned to his office.

Loudermilk’s sketchy evidence

As to Loudermilk’s referral of Liz Cheney to an aspiring FBI Director whom Loudermilk would have to refer as well if not for his utter silence about the aspiring FBI Director’s centrality to what Loudermilk describes as insubordination and misconduct?

I hope, for Loudermilk’s sake, that it is intentionally half-hearted, an effort to do what he knows Trump is demanding, to simply give the aspiring FBI Director an excuse to predicate an investigation into Liz Cheney (if not himself).

Because key parts of his argument don’t say what he claims they do.

For example, a footnote in Loudermilk’s report appears to claim that texts between Cassidy Hutchinson and Alyssa Farrah apparently dated May 2 (by context, this would be 2022) are instead from June 6 (2021, the footnote says; my annotations, but Loudermilk appears to have mixed up two sets of texts he has).

Even assuming the footnote meant June 6, 2022, not 2021, the difference matters, because as Loudermilk notes, Hutchinson appeared a third time before the committee represented by Stefan Passantino on May 17, 2022, so her continued satisfaction with Passantino on May 2, 2022 is inconsistent with Loudermilk’s story and consistent with Cheney’s.

Loudermilk makes much of the fact that Passantino was not disciplined after a complaint in which Hutchinson refused to cooperate. Except the source he relies on for that claim, this NYT story, describes (in addition to the fact that Hutchinson refused to cooperate) that Passantino was ordered to do training about written conflict disclosure to his clients.

In a Feb. 2 letter, the office said that while Ms. Hutchinson had consented to having Mr. Passantino’s fees paid by the political action committee aligned with Mr. Trump, putting the arrangement in writing is mandatory under Rule l. 5(b) of the District of Columbia Rules of Professional Conduct. It required him to take legal ethics training classes during a probation period.

But, citing Ms. Hutchinson’s unwillingness to talk to investigators, the office said there was insufficient evidence on the larger matter.

“Ms. Hutchinson made some allegations about your conduct to the committee, but she refused to cooperate in our investigation,” it said. “Accordingly, except for the Rule l. 5(b) allegation, which you admit, we are not proceeding on her other allegations at this time. We are unable to prove those allegations by clear and convincing evidence, as we must.”

Elsewhere, Loudermilk claims that Hutchinson’s own House testimony supports his claim that Hutchinson selected Alston & Bird “at the recommendation of Representative Cheney” (he doesn’t provide a page number). But that section of Hutchinson’s testimony doesn’t support his contention about Cheney’s role in it.

Which brings us to the biggest problem with all this. Loudermilk’s conspiracy theory that Liz Cheney went out and got Hutchinson a lawyer who would support a propaganda line that Committee was seeking gets very close to claiming that Hutchinson’s new legal team, including former top DOJ official Jody Hunt, was himself engaged in unethical conduct.

I would bet a good deal of money that if Hunt were ever asked if he acted ethically when he represented Hutchinson’s later appearances before the committee, he would say he did.

And even if everything Loudermilk claimed were true, even if Cheney were acting as a lawyer and not a Committee member, she’d still be guilty of no more than unethical — not illegal — conduct.

Especially when by focusing on Cheney but ignoring aspiring FBI Director Kash Patel, Loudermilk gives up the game.

This report does more to cover up what Loudermilk himself suggests is potential misconduct from aspiring FBI Director than it exposes real crimes by Liz Cheney.

And he provides this evidence of either incompetence or (Loudermilk claims) misconduct in the black hole where Kash Patel should be just in time for Kash’s confirmation hearings before the Senate.

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Kash Patel Also Lied about Trump’s Personalization of US Intelligence

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First Mother Jones and then NYT had stories this week laying out a bunch of false claims that Kash Patel made about his experience at DOJ.

The headline lie in both is that, in his Government Gangsters book and interviews since, Kash lied about how significant a role he played in the Benghazi investigation, as MoJo lays out here.

“I was leading the prosecution’s efforts at Main Justice in Washington, DC,” Patel writes.

Several FBI and Justice Department officials who worked the Benghazi case say this description is an exaggeration. Asked about Patel’s characterization, a former FBI special agent who was on that investigation for years exclaimed, “Oh my god, no. Not on that case. Not on Benghazi.”

[snip]

This former agent said that the counterterrorism section had a small role in the Benghazi probe. Primarily, the FBI and the US attorney’s office in Washington, DC, handled the case. “I don’t recall Patel having any influence on it,” he said. He recounted one meeting during the investigation that Patel attended in which Patel was not taken seriously by the main attorneys on the investigation. “The issue was whether or not we had the information needed to make a charge,” the former agent said. “He wasn’t a very experienced attorney and was dismissed by some of the attorneys at the table. The message was, we’re not paying attention to you.”

NYT adds a second, perhaps more important reason why Kash’s lies matter: Because he lied in an attempt to claim Democrats went soft on terrorism.

“Despite the fact that we had reams of evidence against dozens of terrorists in the Benghazi attack, Eric Holder’s Justice Department decided to only prosecute one of the attackers.”
— “Government Gangsters”

“I remember this meeting with then-A.G. Holder. And we had a deck of like 19 guys we wanted to prosecute. You know, JSOC had them rolled up and we wanted to get them all. They killed four Americans. You know, it’s a legit terrorist attack. And the basic general response from the F.B.I. and D.O.J. leadership was ‘it’s only politically convenient to get one guy.’”
— “The Shawn Ryan Show”

Mr. Patel’s statements suggest that the Justice Department under the Obama administration decided to initiate criminal proceedings against only one of the attackers, Mr. Khattala.

But as early as late 2013, the department had already filed sealed complaints against about a dozen militants, officials said at the time. Criminal complaints initiate prosecutions, but are often kept under seal if the charged person remains at large.

And prosecutors filed more secret complaints as the investigation identified additional suspects. A complaint filed against a Libyan man, Mustafa al-Imam, in May 2015, for example, became public only after his capture in 2017. (He was convicted in 2019 and sentenced to more than 19 years in prison.)

Other Benghazi suspects have since died.

Mr. Patel’s statement that the military had already “rolled up” as many as 19 attackers implied that they were already in American custody, raising the seemingly inexplicable question of why they did not get sent to trial.

In fact, to date, only Mr. Khatalla and Mr. al-Imam have been tried because the military has not captured any others — including on Mr. Patel’s watch as the Trump White House’s senior director for counterterrorism.

Capturing a specific person in a war-torn country where the military has scant ground presence is costly, risky and difficult. The operation to find and grab Mr. Khatalla required months of complex planning, including recruiting an informant to befriend and then lure Mr. Khattala to an oceanside villa, where an F.B.I. agent and American commandoes captured him and took him to an American warship waiting off the coast.

These fact checks will make for some interesting questions at Kash’s confirmation hearing. With some unspecified exceptions, these stories are primarily sourced to former officials:

  • Former agent
  • Former official in counterterrorism section
  • Andy McCabe
  • A former FBI agent who worked for years on the Uganda investigation
  • Robert D’Amico, a former F.B.I. agent
  • Public documents and interviews with several current and former law enforcement officials

That has the upside of allowing people to talk without fear. It means these people are no longer inside the bureaucracy, able to push back from within.

In any case, none of this will prevent Kash from being confirmed. Like Kash, John Ratcliffe fluffed his counterterrorism experience, in Ratcliffe’s case, to get elected. That led Trump to ditch his nomination a first time, but not in 2020 when he was confirmed on a largely partyline vote; the second vote was successful in significant part because then Acting Director of National Intelligence Ric Grenell, who was being babysat by Kash, was such a shitshow that Ratcliffe was a less-awful alternative.

But Kash has lied about more than his own inexperience. As NYT noted, he also likes to lie for partisan gain. That’s how he has convinced Republicans to support his nomination.

It’s a third kind of lie that hasn’t factored much in discussions of his tenure at FBI. Kash Patel has been absolutely central to Trump’s efforts to personalize intelligence obtained by US officials. And there is abundant reason to believe he lied about that, at least publicly, when he claimed, in May 2022, that Trump had declassified all the documents found at Mar-a-Lago. There’s a bunch about Kash’s role in the classified documents investigation — for example, why Kash and John Solomon suddenly got status as Trump’s representatives to the archives when prosecutors asked for surveillance video, or what Kash told prosecutors in November 2022 when he sat for immunized testimony — that is not yet public.

But it may become public, possibly as early as this week and presumably well before his confirmation hearing. Indeed, if (for example) one of the things the FBI found during the August 8, 2022 search of Mar-a-Lago but did not charge was some version of the Crossfire Hurricane binder, that may show up in Jack Smith’s closing report.

Another thing that might show up in Jack Smith’s report is what someone whose potty mouth resembles that of Eric Herschmann (person 16 here) had to say, in an interview days before Kash testified, about the claims that Trump “declassified everything” made by some “unhinged” person who exactly matches Kash (person 24).

As MoJo and NYT lay out, Kash Patel has lied to inflate his own resumé. He has lied to attack Democrats. According to Olivia Troye (whom Kash did not sue after threatening to do so).

But he was also a key player in Trump’s effort to take home classified documents and put them to his own personal use.

That, too, is unlikely to give Republican Senators pause before putting him in charge of FBI’s signals collection (often with NSA involvement) and informant programs. But it is likely to be far more important than fluffing his resumé going forward.

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To Pay Off His Election Debts, Trump Seems Prepared to Destroy the United States

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Kimberly Strassel is struggling with cognitive dissonance. She’s trying to convince Republicans to reject the nomination of RJK Jr, whom she believes Trump named to head Health and Human Services only as electoral payback.

Welcome to the Robert F. Kennedy Jr. nomination, one of the more counterproductive Washington charades in recent history. Donald Trump has, in payback for late-stage election support, nominated a man for the vital cabinet position (health and human services) whom he once labeled a “Democrat Plant” and a bigger threat to the country than Joe Biden. Now meet the Republican senators, activists and influencers who are so clueless—and so blindly eager to salute the leader—that they can’t see the opportunity to save Mr. Trump from a deal he would never have made in other circumstances.

[snip]

It seems not to have occurred to Senate Republicans—who ought to have learned a little bit about Mr. Trump by now—that he needs a rescue here. No insider believes this is a heartfelt pick. Even political naïfs understand what happened: This agreement was entirely transactional. Mr. Trump saw an opportunity to gain RFK’s endorsement. The price was a promise of a big post. The president-elect is holding true to that deal as a businessman, so he won’t dare whisper misgivings for fear of leaks.

Instead Senate Republicans are playing monkey-see-monkey-do to an extent that even Mr. Trump must be exasperated. Nearly every GOP senator looks at Mr. Kennedy with wincing concern—knowing the havoc the anticapitalist big-government regulator can and will wreak on a Trump agenda. Yet no one steps up to save the president. If Joe Biden chose Hulk Hogan to be Treasury secretary, does anyone think Democrats would have let him step into that trap? But so desperate right now are Republicans to nod along that they are abdicating the real job of advice and consent—and protection.

Murdoch’s top columnist believes Trump needs to be saved from himself.

It comes with no small discomfort to admit that my approach to Trump’s nominations is not much different than [gulp] Strassel’s. I think Democrats, rather than fostering polarization by attacking Trump’s nominees as the partisan hacks they are, should instead frame the question in terms of the damage they’ll do to the US, the damage Republican Senators will own if they confirm them.

How hard can it be, after all, to convince Republicans that they don’t want to be responsible for letting Bobby Kennedy get rid of childhood vaccinations, revoking approval for the polio vaccine entirely, with the resultant death and destruction that’ll directly cause in their own states (as it did already in Samoa)?

How hard can it be, after all, to convince Republicans that the same billionaires who bankrupted Silicon Valley Bank then promptly begged for and got bailed out, shouldn’t be recommending the elimination of the FDIC?

That is, I think Democrats would be best served by laying out that if the Republicans approve these charlatans, they cannot claim they were not warned. They own the destruction Trump is embracing. If Trump gets his way on all these picks, it will be more destructive to the United States than dropping a nuke on NYC. And Republican Senators have a choice to sanction that … or try to prevent it.

All that said, in her valiant struggle to make sense of why the man she has blindly defended for years might take steps that will foreseeably do grave damage to harm the US, Strassel may simplify things somewhat when she imagines this is just about electoral payback.

For starters, much of the criticism Trump launched against RFK during the campaign was kayfabe, an attempt to appear to be on opposite sides as him, in a ploy to harm the Democratic ticket. That “charade,” as Strassel calls this, was about stealing Democratic votes, not feigned approval for RFK now.

Plus, Donald Trump is famous for reneging on his debts, whether personal or financial, and he would happily do so with RFK if he saw an advantage in it. Hell he has already reneged on the offer to Bill McGinley to be White House Counsel and given the job instead to David Warrington. While Elon Musk likely has a great deal of leverage over Trump for the foreseeable future, it’s hard to see how RFK could enforce any deal they made, if indeed they had one.

On the contrary, at least according to Trump whisperer Marc Caputo (citing Roger Stone, who has long been a professional Kennedy conspirator), Trump has affirmative reasons he wants RFK and … Tulsi Gabbard.

But the most critical fights for the president-elect, at least in regard to his immediate political legacy, center around Tulsi Gabbard and Robert Kennedy Jr., former Democrats tapped to head the nation’s sprawling intelligence and health bureaucracies, respectively.

Gabbard’s and Kennedy’s nominations, like Hegseth’s and Patel’s, have met resistance in pockets of the Senate. But Trump allies view the stakes differently. Confirming Gabbard and Kennedy is seen as an opportunity for the president-elect to cement his legacy of broadening the Republican coalition to include disaffected Democrats and independents. They note that the two are considered Blue MAGA rock stars among the Trump faithful. They’re both loved by the new influential podcasters whom Trump courted this election and give Trump the chance to burnish his anti-establishment bona fides.

“The appointments of RFK and Tulsi Gabbard represent a realignment in American politics that you saw in the election,” said Roger Stone, a longtime Trump friend and adviser. “He understands the historical significance of that realignment.”

For that reason, there is an expectation in Trump world that the president-elect will expend more of his political capital on Gabbard and Kennedy than on any of the other nominees. And that he could go apoplectic if their prospects begin to dim.

“Frankly, Pete [Hegseth] might not make it,” said one Trump adviser. “We’ll see. I’m not sure if the boss is willing to fight for that because there are people in our own camp who aren’t sure it’s worth it. But Kash [Patel] should get confirmed. And if they try to touch Tulsi and Kennedy, then it’s war.”

Added a second adviser: “If Tulsi or Bobby face real trouble, that’s when Trump will really start to fight. They represent the challenging of the status quo of the bureaucracy. That’s what MAGA is about.”

Now, Caputo is incredibly well-sourced in the vicinity of people like Stone, but he can be credulous.

And I’m not sure I believe that his sources believe what Bobby and Tulsi give you is some magical realignment among actual Democrats, who long ago dissociated from these nuts.

But I don’t doubt that the rat-fucker wing of Trump’s advisory team believes that Bobby and Tulsi do accomplish something. The question is whether some really smart politicos believe it’ll be a good thing to kill children and give dictators America’s secrets and let the richest men in the world destroy America’s banking system and the dollar exchange — whether they believe this will win lasting approval from America’s great disaffected masses. It might well! It certainly will expand the pool of disaffected Americans, and with it, increase the market for a strong man to respond to it all.

Or whether there’s some reason Trump is tempting Republican Senators to defy his plans to do great damage to the United States. Perhaps he intends to dare them to start defying him in bulk.

Or perhaps the rat-fucker wing of Trump’s entourage simply has an unknown reason they want to destroy America. Maybe Trump has other election debts — debts he’d get in more trouble for ignoring — that make him amenable to dropping policy bomb after policy bomb on America’s children.

But that’s sort of the point. You’ve got Kimberly Strassel up in arms because Trump is going to the mat for a conspiracist with a Democratic name who’ll get children killed. But it’s more likely to do with the policy bombs that RFK will help Trump drop than the specific conversations that led Bobby Jr to drop out of the race.

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Zero Accountability: The Five-Plus Times DOJ Got Fabricated Evidence against Hunter Biden

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The other day, former FBI Agent Asha Rangappa attributed the 11-year scope of Hunter Biden’s pardon to the possibility that, “For the 1st time, the FBI and Justice Department could literally fabricate evidence, or collaborate with a foreign government to ‘find’ evidence of a ‘crime,’ with zero accountability.”

Rangappa is not wrong that the ability to fabricate evidence to invent new crimes with which to charge Hunter likely helps explain the scope of the pardon.

But her suggestion that a second Trump term would be the “1st time” the FBI was in a position to do that is, itself, a symptom of the “zero accountability” that allowed Trump to win a second term.

FBI and DOJ already allowed various types of people — from spies to grifters to informants to an AUSA — to fabricate evidence against Hunter Biden and his father at least five times, with another four instances of potentially false evidence. It appears that such fabricated evidence played a role in the collapse of Hunter’s plea deal, David Weiss’ request for Special Counsel authority, and the evidence that convicted Hunter in his Delaware trial.

And whatever its influence on Hunter’s ultimate conviction, how Republicans worked to insert fabricated and otherwise suspect information into Hunter’s case is a lesson for how it’ll continue to happen.

The following list includes five examples, with numbered headings, that present compelling evidence of fabricated information used either by Congress or DOJ to go after Hunter and his father, along with four suspect incidents. The first five are presented in order of seriousness with regards to the effect on Hunter’s due process. This post will review each. I’ll do a followup that explains the lessons we can take from this.

  1. After sharing a debunked Fox News meme, Alexander Smirnov makes false claims of bribery
  2. Derek Hines narratively plants a crack pipe in Wilmington
  3. The gun shop also lied on the gun form
  4. Tony Bobulinski[‘s FBI report] claims he saw a diamond pass hands
  5. Gal Luft claims Joe Biden met directly with CEFC Chairman Ye in 2016
  • FBI enthusiastically welcomes “The Economist’s” claims
  • The Scott Brady side channel launders dirt Rudy Giuliani obtained from Russian agents
  • FBI makes Peter Schweizer their special Hunter Biden informant
  • Judge Maryellen Noreika admits a laptop that has never been indexed

1. After sharing a debunked Fox News meme, Alexander Smirnov makes false claims of bribery

Fabrication: Longtime FBI informant Alexander Smirnov allegedly falsely claimed Mykola Zlochevsky twice told him that he was bribing Joe Biden.

Resolution: According to Scott Brady’s testimony, prosecutor Lesley Wolf had treated the Smirnov allegation with the same skepticism she did other tips shared via the side channel from Rudy. But after Congress leaked the Smirnov FD-1023 and Bill Barr publicly complained that David Weiss was supposed to have investigated it, it appears to have been part of — if not the primary reason — why Weiss reneged on the plea deal with Hunter, obtained Special Counsel status, and ratcheted up charges afterwards.

In January 2020, right in the middle of impeachment, Bill Barr set up a “discreet” side channel overseen via Pittsburgh US Attorney Scott Brady via which Rudy Giuliani could share the dirt on Hunter Biden he had obtained, in part, from known Russian agent, Andrii Derkach.

As part of that process, Brady checked in on all investigations implicated by the side channel: the SDNY investigation into whether Rudy was acting as an unregistered agent of various Ukrainians, David Weiss’ investigation into Hunter Biden, and two oligarchs from whom Rudy solicited dirt on Hunter: Dmitry Firtash and Ihor Kolomoisky. In his interview, Brady didn’t claim to have looked into the investigation into another oligarch from whom Rudy solicited dirt (indirectly): Mykola Zlochevsky. That investigation reportedly started in 2016 while Joe Biden was Vice President and got shut down the previous month, December 2019, right in the middle of an impeachment focused on corruption at Burisma. Rather, Brady dubiously claimed he discovered Smirnov in a search on Hunter and Burisma.

As Alexander Smirnov’s first indictment describes it, it worked the other way. When Smirnov saw a report of Derkach’s meetings with Rudy, Smirnov started texting his handler that, “bribe of [Joe Biden] should soon be in the news))).” He promised to get proof — and then started sending already debunked memes made popular on Fox News.

Neither story convincingly explains how Brady came to reach out to Smirnov to give him opportunity to frame Donald Trump’s opponent. Perhaps one of Smirnov’s three ties to Trump and his people, including the financial ties to Economic Transformation Technologies, which in turn has ties to one of the construction companies that has partnered with Trump Organization in the Middle East, that are the subject of a second indictment against Smirnov, better explains it. That is, perhaps someone in Trump’s camp knew to send him.

Whatever the case, after Brady came calling, Smirnov claimed that at a meeting in 2017, Zlochevsky insinuated he was paying Hunter Biden as protection, from Joe, for himself. Smirnov further claimed that on a phone call the previous year (in 2019, around the time Rudy was expecting a Hunter laptop, and close to the time the investigation into Zlochevsky would be shut down), the Burisma head bragged about hiding his payments so well it would take ten years to find them.

Here was the bribery claim that Trump had first demanded a year earlier from Volodymyr Zelenskyy, all wrapped up with a bow in that Brady side channel!

Brady told Congress his investigators vetted Smirnov’s claims, which was, after all, the purported reason for his side channel. The Smirnov indictment repeatedly described how precisely the thing — Smirnov’s travel records — that Brady claimed he had used to validate Smirnov’s allegations instead debunked them. Jerry Nadler referred Brady for investigation for those false claims to Congress, an investigation that will presumably be killed after inauguration.

On October 23, 2020 — days after Trump personally yelled at Bill Barr about the investigation into Hunter Biden and on the same day that Tony Bobulinski, accompanied by a former Trump White House lawyer, claimed to have personally witnessed a key meeting with CEFC — David Weiss’ team was ordered by Richard Donoghue to receive a briefing on this allegation.

With the personal involvement of Bill Barr, PADAG Richard Donoghue and before him Seth DuCharme, and FBI Deputy Director David Bowdich, Scott Brady found an informant who — if you believe the indictment — was willing to fabricate a bribery claim against Joe and Hunter Biden during an election year.

Don’t tell me that a second Trump administration will only prospectively use fabricated evidence, because it already happened, and the guy currently investigating how it happened was a witness to the process and one of the interviews in this case.

When DOJ ordered prosecutors to accept this alleged fabrication in 2020, AUSA Lesley Wolf reportedly treated it with the same skepticism she treated all the other dirt laundered through the side channel, and it went nowhere. But it didn’t go away. Republicans resuscitated it, in 2023, during their baseless effort to impeach Joe Biden. The FBI tried but failed to limit sharing of Smirnov’s FD-1023. Marjorie Taylor Greene promptly leaked details of it. Bill Barr started making public claims about it in response to Jamie Raskin’s accurate description of what happened in 2020. Then a “whistleblower” leaked the form itself via Chuck Grassley and James Comer. And amid that frenzy, Weiss reneged on his office’s previous assurances that there was no ongoing investigation, told Lindsey Graham that Smirnov’s FD-1023 was part of that ongoing investigation, and then obtained Special Counsel status, out of which the Smirnov false statements prosecution arose.

Yes, after the Smirnov allegation served as a precipitating factor in the collapse of Hunter Biden’s plea deal, he too is now being prosecuted. But by all appearances, the fabrication and the way Republicans leveraged it nevertheless played a central role in the plight of Hunter Biden, a central role in prosecuting him with far more serious charges than originally planned. The fabrication had its effect, and the effect was to make Hunter a felon.

Update: On December 10, Alexander Smirnov signed a plea deal admitting his bribery claims against Joe Biden were fabricated.

The events Defendant first reported to the Handler in June 2020 were fabrications. In truth and fact. Defendant had contact with executives from Burisma in 2017, after the end of the Obama-Biden Administration and after the then-Ukrainian Prosecutor General had been fired in February 2016 — in other words, when Public Official 1 could not engage in any official act to influence U.S. policy and when the Prosecutor General was no longer in office. Defendant transformed his routine and unextraordinary business contacts with Burisma in 2017 and later into bribery allegations against Public Official 1, the presumptive nominee of one of the two major political parties for President, after expressing bias against Public Official 1 and his candidacy.

2. Derek Hines narratively plants a crack pipe in Wilmington

Fabrication: AUSA Derek Hines repeatedly claimed that a line from Hunter Biden’s memoir set in February to March 2019 in New Haven happened in 2018 in Wilmington.

Resolution: None. Hines presented a version of this claim to jurors.

Prosecutors faced a number of challenges with charging Hunter Biden for the gun crime David Weiss had earlier decided to divert. They needed to defend against a vindictive prosecution claim that they had ratcheted up the gun charges against Hunter Biden because he didn’t accept the narrowed plea agreement after Weiss reneged on his June 19, 2023 assurances there was no ongoing investigation. Their plight was made worse because investigators had never taken the most basic investigative steps to pursue the gun charge: they had never obtained a warrant to search Hunter’s digital evidence for proof he was addicted when he owned the gun, and they had never done laboratory analysis on the pouch in which the gun was found. They did both those things after indicting Hunter for the gun crimes in 2023, after the statute of limitations had already expired.

The decision to charge Hunter with the gun crimes appears to have amounted to, “We know Hunter was an addict based on stuff obtained on the laptop and published in the right wing press” (indeed, one of Judge Maryellen Noreika’s decisions mistook stuff published by Murdoch rags for evidence before her).

Abbe Lowell has claimed that, at least in August 2023, prosecutors told him they had no need to rely on the laptop for evidence at trial. Prosecutors seem to have believed, incorrectly, that the laptop was an exact match of Hunter Biden’s iCloud. They similarly seem to have believed that Hunter’s memoir provided adequate proof that Hunter was doing drugs during the 11-day period in October 2018 he owned the gun. In fact, the memoir says almost nothing about that period.

Nevertheless, AUSA Derek Hines made a version of that argument — that the memoir reflected drug use during or closely after the period he owned the gun — over and over, at least seven times by my last count. Hines did so by claiming that his favorite line from the memoir — “It was me and a crack pipe in a Super 8, not knowing which the fuck way was up” — took place in fall 2018 in Wilmington, DE, and not in Hunter’s stopover in New Haven between the time he left Keith Ablow’s treatment in February 2019 and arrived back in Wilmington, before then moving back to Los Angeles permanently.

He simply moved the narrative reference to the crack pipe in a Super 8 from one crime scene to the one where he needed it to be, from 2019 to 2018, from New Haven to Wilmington. Just like a dirty cop moves an actual crack pipe from one location to another.

(This post includes the full memoir excerpt and a summary of Hunter’s spending around New Haven; it also notes that the claim he was staying in Super 8s was, as so much auto-biography is, embellishment.) The argument was absolutely crucial to Hines’ responses to Hunter’s selective and vindictive prosecution claims, falsely substantiating a defense of the prosecutorial decision to charge Hunter with the gun crimes (and even the tax crimes) because there was so much evidence against Hunter in the memoir, when in fact the memoir had a gap for the crucial period.

Hines sustained this fabrication with the jury by selectively presenting the memoir to exclude the discussion of leaving Ablow’s treatment and the way it exacerbated Hunter’s addiction. And when he walked his summary witness through the memoir, he again falsely insinuated that the line took place in 2018, not 2019.

Q. And how about any section in Chapter 9 or Chapter 10, the relevant time period for 2018?

A. No.

Q. And finally, page 208, continuing in the same chapter, after Mr. Biden describes full blown addiction, Exhibit 19, page 208, does Mr. Biden write “crack is a great leveler.” And then he goes on to say “just like in California.” Is that what he goes on to say here?

A. Yes.

Q. If you zoom out, above that, does he say in the first paragraph, “It was me and a crack pipe and a super eight, not knowing which the fuck way was up.” Are those his words?

A. Yes.

Q. And this is in the same chapter when he describes his return in the fall of 2018; correct?

To be sure: Hunter was also staying in cheap motels while he was in Wilmington in 2018, including the night before Hallie Biden found the gun. But those stays don’t appear in his memoir, and so prosecutors had little to no evidence that he was smoking a crack pipe while staying there. As noted, virtually nothing from those weeks in Wilmington appears in his memoir.

But that was true of the evidence against Hunter generally. While there was a great deal of evidence showing Hunter using drugs before and after the period he owned the gun, there was little definitive evidence showing him using in those 11 days.

Prosecutors charged a case for which they had very little direct evidence of drug use during the period in question. One way they won a conviction anyway was by misrepresenting the timing and location of this line in the memoir.

3. The gun shop also lied on the gun form

Fabrication: Sometime after reporting the gun purchase, the gun shop added a claim to the original form that they had asked Hunter for a second form of ID, in addition to his passport (which, because it lacks an address, would not suffice). 

Resolution: Judge Noreika prevented Hunter from presenting the doctored form to the jury or questioning specifically on the question (though Abbe Lowell did elicit closely related answers), thereby preventing Hunter from discrediting the gun shop practices generally or the proving Hunter’s lie on the gun form was not material. 

According to a contested Abbe Lowell filing, before the election in 2020, the guy who owned the gun shop from which Hunter bought a gun, Ron Palimere, and the State Trooper who first investigated the gun in 2018, Vincent Clemons, exchanged WhatsApp texts about how they could release the paperwork tied to the gun purchase in order to help beat Joe Biden.

[Vincent] Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with [Ron] Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

As part of their effort to use Hunter’s gun purchase to hurt his father in the 2020 election, it appears that on October 22, 2020 they for the first time printed out the receipt recording Hunter’s purchase of the gun.

They would leak these materials, as well as the partisan write-up of the investigation penned after the fact by Clemons, to right wing propagandists.

Their reference to “proper forms” was important, Lowell argued, because some time after the original gun form was emailed to ATF after the gun had already been lost and recovered, it got altered, to falsely reflect that the gun shop obtained a second form of ID before selling a guy they knew to be Joe Biden’s kid a gun. (There’s no way this vehicle registration could have served as a second ID to supplement the passport, because Hunter was driving his father’s Cadillac, and so the registration would have been in Dad’s name.)

Hunter got evidence that these key witnesses tried to use these documents as part of a political hit job long after his selective and vindictive prosecution bids were rejected. And Judge Maryellen Noreika prohibited Hunter’s team from introducing either that the gun shop owner hated Joe Biden and also wanted to get Hunter out of his shop as quickly as possible and as a result sold him a gun without first getting the proper paperwork, or that they altered the form after the fact. Jurors were left with no explanation of why gun shop employee Jason Turner repeatedly claimed to have written “DE Vehicle Registration” on the form, but it didn’t appear on the form before them (see this post for more on the way the gun shop employees’ testimony materially conflicted).

The means by which prosecutors managed to cover up that the gun shop had also broken the law is fairly banal: They relied on secondary witnesses for key testimony rather than that of people more directly implicated in similar conduct as Hunter (the gun shop owner was immunized to sustain this case), and performed ignorance of details about this corruption at trial.

That happens all the time in criminal trials prosecuted by AUSAs who excel at prosecutorial dickishness. Judge Noreika’s decision to exclude a doctored gun form (and instead rely on a scan at trial) might have been a ripe issue for appeal. Certainly, by excluding evidence that the gun sale went through without proper paperwork, she excluded evidence that Hunter’s lie was not material.

But the larger issue is that Hunter Biden was prosecuted for lying on a gun form even while prosecutors covered up that the gun shop owner himself had an employee fabricate the form after the fact, possibly to hide his own role in leaking to the press and trying to push such a case against Joe Biden’s kid.

4. Tony Bobulinski[‘s FBI report] claims he saw a diamond pass hands

Fabrication: After Trump hosted Tony Bobulinski at a debate, the FBI recorded claims that Bobulinski personally witnessed a key CEFC meeting.

Resolution: After prosecutors deemed Bobulinski’s testimony unreliable and so avoided follow-up, IRS agents claimed prosecutors improperly withheld Bobulinski’s testimony, leading to his platforming of slightly different claims in a hearing purporting to support impeachment. Bobulinski accused FBI of misrecording his interview.

The day after being hosted by Donald Trump at one of the Presidential debates, Tony Bobulinski — represented by onetime White House Counsel and future January 6 witness attorney Stefan Passantino — went to the FBI and made certain claims about Hunter Biden’s ties to CEFC. Among other things, he claimed that he participated in a Miami meeting between Hunter Biden and CEFC Chairman Ye Jianming.

BOBULINSKI first met in person with members of the BIDEN family at a 2017 meeting in Miami, Florida. BOBULINSKI, GILLIAR, WALKER, HUNTER BIDEN, and YE all attended the meeting. Also in attendance was Director JIAN ZANG (“ZANG”), a CEFC Director involved in forming new businesses and capitalizing them at the request of CEFC. At the meeting, BOBULINSKI witnessed a large diamond gemstone given as a gift to HUNTER BIDEN by YE.

The work conducted by CEFC, GILLIAR, WALKER, HUNTER BIDEN, JAMES BIDEN and YE over the preceding two years was discussed in detail at the Miami meeting. In particular, CEFC was closing significant investment deals in Poland, Kazakhstan, Romania, Oman, and the Middle East during this period of time. CEFC had used its relationship with HUNTER BIDEN and JAMES BIDEN – and the influence attached to the BIDEN name – to advance CEFC’s interests abroad. HUNTER BIDEN and JAMES BIDEN did not receive any monetary compensation for their assistance in these projects. HUNTER BIDEN and JAMES BIDEN did not receive any compensation because JOSEPH BIDEN was still VPOTUS during this time period.

He also claimed that when he met Joe Biden in May 2017, they discussed the business deal.

Further, BOBULINSKI met with JOSEPH BIDEN in person on May 2, 2017 at approximately 10:30 PM at the Beverly Hills Hilton Hotel bar in Beverly Hills, California where they discussed SINOHAWK

In his congressional testimony, Bobulinski disclaimed several things recorded in his FBI interview report. He said he did not attend the meeting in Miami nor witnessed the transfer of a diamond to Hunter. He backed off his description of the substance of his meetings with Biden.

Not only did Joe Biden meet with me twice for an extensive amount of time — and we weren’t talking about the weather or niceties. We had an extensive discussion about his family, my family, my business career, where I was successful, the military background, and what I was doing with the Chinese. However, coached before that meeting to not go into a lot of detail by Hunter and Jim Biden. Okay?

The effect here is subtle. Bobulinski — who is furious that Hunter cut him out of this deal — is still trying to put Joe Biden at the center of it, he’s still trying to claim (contracts and finances notwithstanding) that the aspiring President got 10% of the deal. That’s the now partly-disclaimed story he told, allegedly presenting himself as a direct witness to more than he was, when he waltzed into the FBI fresh off his campaign event with Donald Trump.

5. Gal Luft claims Joe Biden met directly with CEFC Chairman Ye in 2016

Fabrication: Uncorroborated testimony that Hunter’s financial payments from CEFC started while Joe Biden was still Vice President.

Resolution: Public release of charges after Luft got House Republicans to claim a cover-up.

At a time when he would have known he was under investigation for his role in Patrick Ho’s influence-peddling scheme, March 2019 (for which he was charged and currently awaits extradition), Gal Luft met with investigators in Belgium for two interviews, one focusing on his role in Ho’s activities, another focused on Hunter Biden. At the latter, he claimed that Joe Biden had met with Ye when he was still President, in 2016, and Hunter had gotten paid in 2016 too.

LUFT is aware that YE met with BIDEN and HUNTER at the end of 2016 at the Four Seasons Hotel in Washington.

The meeting at which Biden was present was later, in March 2017. Here’s how Rob Walker described it.

Walker: It was out‐of‐office.  Ah, we were in ah.., D. C. at the Four Seasons…

Soline: Hmph hmph. Walker: …and ah.., we were having lunch and he.., he stopped in…

Soline: Hmph hmph.

Walker: …then he’d ah, leave.

Wilson: Okay.

Walker: That was it.

Wilson: Just said hello to everybody and then…

Walker: Yes.

Wilson: …took off?

Walker: He literally sat down.  I don’t even think he drank water.  I think Hunter said um.., I may be tryin’ to start a company, ah, or tried to do something with these guys and could you.., and  think he was like “if I’m around”….and he’d show up.

So, too, was a $3 million payment that Luft said Hunter (actually, Rob Walker) received. Luft said it was paid in December 2016; it was paid in March 2017.

At the meeting, Luft “was directly asked to identify his CEFC CHINA ENERGY source(s) but refused to do so.”

Here’s how the tax indictment against Hunter (though not dissimilar to Bobulinski’s claims) described these ties.

8. In the late fall of 2015, the Defendant, Business Associate 1, and Business Associate 2 began to investigate potential infrastructure projects with individuals associated with CEFC China Energy Co Ltd. (CEFC), a Chinese energy conglomerate.

9. In or around December of that year, the Defendant met in Washington, D.C., with individuals associated with CEFC. During the next two years the Defendant, Business Associate 1, and Business Associate 2 continued to meet with individuals associated with CEFC, including in February 2017, with CEFC’s then-Chairman (hereafter “the Chairman”).

10. On or about March 1, 2017, State Energy HK, a Hong Kong entity associated with CEFC, paid approximately $3 million to Business Associate 1’s entity for sourcing deals and for identifying other potential ventures. The Defendant had an oral agreement with Business Associate 1 to receive one-third of those funds, or a million dollars. The Defendant, in turn, directed a portion of those million dollars to Business Associate 3.

On these topics, Luft’s testimony is subtle — just a temporal shift by a few months to make the sleazy Biden relationship with CEFC more damning (and put FARA charges that SDNY seems to have declined by the time Luft went public in 2022 back on the table).  Perhaps unsurprisingly, Luft slightly adjusted his claims about his testimony when he went to NYPost after his arrest, correcting the monetary amounts and timing focusing instead on the later event at which Biden was co-present with Ye.

Luft’s comments about Hunter Biden don’t appear in his own indictment. And indeed, there’s no evidence he wittingly lied himself; whereas Bobulinski had claimed firsthand knowledge of the Miami meeting, Luft was only claiming to have second-hand knowledge of this information. It could well have been an effort from his own sources to harm the Bidens. In his effort to allegedly disavow his own involvement in this influence peddling, Luft certainly had cause to want to shift CEFC’s attempt to recruit James Woolsey, likely sparked by Trump’s election win, to instead focus on what was surely a similar attempt to cultivate the Biden family, something that had less value after Trump’s win.

The files released by the disgruntled IRS agents show that by 2021, SDNY was no longer pursuing a FARA investigation against the Bidens with relation to CEFC, so whatever Luft claim, it has not (at least thus far) done lasting damage, which is the way investigations are supposed to work.

FBI enthusiastically welcomes “The Economist’s” claims

There are a range of Ukrainians who shared dirt on Hunter Biden that made it to investigators. The first two of those, by chronology, were Ukrainians who were briefly made informants by people in Los Angeles, but who were subsequently deemed to be part of an influence operation targeting Joe Biden.

As Johnathan Buma described it, the thumb drive Ukrainians he called Rollie and the Economist provided targeting Hunter Biden in early 2019 (which would have been almost immediately after the investigation into Hunter was opened in Delaware) largely focused on the sex and drugs that reflect Hunter’s addiction, as well as financial improprieties.

After receiving the presentation from ROLLIE and THE ECONOMIST, THE ECONOMIST provided me a thumb drive with some supporting documentation, much of which was in the Ukrainian language, which I do not speak. After I submitted my FD-1023 reports on this information, I was put in touch with two agents working out of the Baltimore office on a case based in Delaware involving Hunter. spoke on the phone with these agents, who were very interested in the information due to its relation to their ongoing investigation that was mostly involving allegations of Hunter’s involvement with drugs and prostitution. Information derived from ROLLIE and THE ECONOMIST had previously been found to be credible, so this was handled carefully and quickly transferred over to the agents in Baltimore and was serilized in their case file. While I transferred the information, I could not read the Ukrainian language, and it required translation in order to determine the viability of the electronic document’s presumed support of the allegations related to Hunter and Burisma, which were presented and summarized in a PowerPoint presentation created by THE ECONOMIST and serialized in the case file. I had no involvement in the subsequent investigation concerning Burisma and the Bidens and never received any update from these agents as to whether the information was corroborated, but later learned from the media that some of the allegations appeared to have been true. Based on the level of corruption and the RIS’ past usage of Ukraine for influence operations raw single-source information derived from Ukraine is always viewed with skepticism by members of the USIC with some specialty and experience in Ukrainian matters.

Buma went on to describe how, when he shared information about Rudy’s ties to Russian spies, his supervisor shut him down.

I’ve written why I am skeptical of Buma. It’s also worth noting that, in fact, in spite of four years of investigation, the FBI never managed to substantiate what he seems to suggest the claims were, so he’s likely wrong that the tips from Rollie and the Economist held up to scrutiny.

Given that, per Buma’s description, these two were quickly disqualified as informants, it seems likely that their information was deemed problematic. That is, it seems likely that this information was vetted and found wanting, which is (again, like the Luft allegations) precisely what is supposed to happen with potentially motivated informant information.

The Scott Brady side channel launders dirt Rudy Giuliani obtained from Russian agents

It’s what DOJ did with Rudy Giuliani’s information, obtained in part from known Russian agents trying to interfere in the election, that defies excuse.

By setting up the Brady Side channel (and related steps), Barr thwarted the SDNY investigation into whether Rudy was himself an unregistered agent of Ukrainian sources. SDNY did not then — and it appears, did not ever — get access to the interview Brady did with Trump’s personal lawyer about how he collected this information. And Brady attempted to intervene in the SDNY investigation to tell them they had gotten it wrong.

As noted above, at Barr’s direction, Brady also created a way that Smirnov could fabricate an allegedly false bribery claim against Joe Biden. He created a way to, effectively, spy on several ongoing investigations.

And, while his sole purpose was supposed to be vetting, his vetting process appears to have done nothing more than serve as a laundry service, insulating Rudy and his sources from investigators and parachuting his information in with the sanction of top DOJ personnel, as when Richard Donoghue ordered DE USAO to provide information about their investigation and accept information in exchange, into the Hunter investigation.

Q And did your AUSAs ever communicate to you issues they were having with Ms. Wolf?

A Not with Ms. Wolf specifically — well, no strike that.

There was an occasion with Ms. Wolf as well, but they would communicate to me the issues that we were having, our investigative team was having with both the FBI and with Delaware and with SDNY. Really the only office we didn’t have any issues with was EDNY. It was Rich Donoghue’s office.

Q Okay.

And so, before you communicated with the PADAG that you needed assistance, did you have an initiative to talk with Mr. Weiss?

A Yeah, I wouldn’t always run to the principal right away, right. I would try to go professional to professional, you know, U.S. attorney to U.S. attorney, and we would try to resolve things. And, only when we couldn’t, would we elevate it to the DAG’s office and involve the PADAG.

Mr. Rosen was never involved directly in our communications. It was always the PADAG.

Q Okay.

And what feedback was Mr. Weiss giving you during that time period before you had to involve the PADAG?

Mr. Lelling. Only in general terms.

Mr. Brady. Usually Mr. Weiss was in receiving mode and would say that he would talk to his team to try to resolve it?

Q At any point did you have to advise Mr. Weiss that you’ve been, you know, you’ve been charged by the DAG to collect this information, and part of your charge and your duty, and correct me if I’m wrong, is to analyze it and hand it off?

A That’s correct and to coordinate with other offices. And, yes, I reminded Mr. Weiss of that obligation that we have, of that requirement, and the FBI on a regular basis as well.

[snip]

Q And were you ever told that the Delaware U.S. Attorney’s Office did not want a briefing from your office?

A I believe I was. I don’t remember. But I know that we had trouble scheduling it.

Q Okay. And then, further down, it states AUSA Wolf’s comments made clear she did not want to cooperate with the Pittsburgh USAO, and that she had already concluded no information from that office could be credible stating her belief that it all came from Rudy Giuliani.

Were you ever made aware of Ms. Wolf’s processing and decisions regarding this briefing, and why she didn’t want the briefing?

A I was not. We did, however, make it clear that some of the information including this 1023 did not come from Mr. Giuliani.

We do not know what kind of information got laundered through this process. We do know that after four years of investigation, DE USAO did not charge any of the allegations that Rudy’s Russian spy buddies were pushing. Again, it looks like prosecutors in Delaware properly viewed this information with skepticism.

FBI makes Peter Schweizer their special Hunter Biden informant

But the import of that process shares a feature with another of the efforts to launder dirt into an investigation into Hunter Biden.

By 2020, even as Arkansas’ US Attorney’s Office was four years into an investigation of the Clinton Foundation predicated in three different venues at least partly on Peter Schweizer’s Clinton Cash, some FBI agents in DC had not just used his writing, but made him a formal informant to report on Hunter Biden. It seems that Schweizer was at least partly repackaging allegations based on the laptop, because (according to testimony from retired FBI agent Tim Thibault), when FBI agents from Delaware asked to stop getting the information, they effectively said they already had it.

At the request of the Delaware investigators, Thibault shut down Schweizer as an informant, four years after Thibault had been one of the the three FBI agents who had chased the Clinton Foundation allegations based on Schweizer’s work.

But like the Brady Side channel, this privileged means of sharing dirt — of uncertain quality — on Hunter Biden became a means to discipline those who tried to protect the integrity of investigations by limiting the partisan shit dumped into them. As Lesley Wolf also did, Thibault faced an entire campaign of retaliation (including from two agents who were themselves firebreathing partisans, who claimed that Thibault shut good work down), including public humiliation in an oversight hearing with Chris Wray.

The threats that Wolf faced may have been worse than what Thibault faced. But unlike Wolf, Thibault is on the (dated) Kash Patel’s enemies list.

We don’t know what substance of information Schweizer share with the FBI; we know the investigative agents didn’t want it, at least in that form.

But a more important point is that Thibault’s efforts (at the request of the investigative team itself) to protect the investigation from partisan taint, just like Wolf’s, made him a target for professional and potentially dangerous retaliation.

Judge Maryellen Noreika admits a laptop that has never been indexed

Which brings us, of course, to the laptop (and accompanying hard drive, purportedly a copy of the laptop but the Cellebrite report from which was 62% longer).

There are a great deal of reasons to be skeptical about the laptop: the discrepancies between John Paul Mac Isaac’s story and the FBI’s, JPMI’s claim that the FBI tried to boot it up four days before the known warrant, the possibility that Bill Barr got sent a copy.

But the biggest caution has to do with its handling.

Immediately after the release by NYPost, Rudy ran his yap and said it didn’t really matter if Derkach was a Russian spy and that he regarded the hard drive copy of the laptop he had to be an “extension” of his efforts to collect dirt from Russian spies. (In congressional testimony, Scott Brady admitted that Rudy never told him about the laptop.)

Thanks to Gary Shapley, we know the panicked meeting that ensued, as the investigative team tried to justify the year that they had spent snooping in a laptop that might have, after all, had something to do with Russia’s information operation. And Shapley recorded in real time not just that prosecutors had an email, dated March 31, 2020, recording some kind of concerns “about quality and completeness of imaged/recovered information from the hard drive,” but that they would not share it with anyone who might have to testify at trial. He also described that, at the time of that October 22, 2020 meeting, the FBI had never checked when the files on the laptop got added when. They had never checked to see if someone had packaged Joe Biden’s son’s digital life up onto a laptop to be dealt to the FBI.

My suspicion is that, after that time, prosecutors decided they shouldn’t try to introduce the laptop at any trial, because they could never clean it of this stench (they don’t appear to have considered investigating that stench, which continues to baffle me to this day). But after brashly telling Abbe Lowell in August 2023 they didn’t need no fucking laptop to charge the gun case, a different set of prosecutors discovered they had almost no evidence showing that Hunter Biden was doing drugs in the 11 days he owned a gun. They discovered that the all-critical communications between Hunter and Hallie Biden from that period — saved from a phone he used until replacement phones for ones he lost days before he bought the gun arrived during this same period — existed only on that laptop which he did not yet possess.

And rather than going back and pretending they were the FBI, acting like the FBI — rather than going back and doing the index that would tell them whether the laptop really did reflect Hunter’s use of it or someone else packaging up the digital life of the then President’s son — they instead bulldozed through things like the dickish prosecutors they are.

They never indexed the laptop. Never.

They never Bates stamped their own exhibits.

They never provided the laptop in e-discovery format.

In fact, after Hunter’s team did their own extraction so they could do searches, prosecutors raised questions about the integrity of their own source, the laptop.

When Judge Noreika denied my request for the extraction reports that Derek Hines claimed authenticated the laptop, she admitted that she had never required a report that actually referred to the laptop by some kind of identifier. The laptop evidence came in with no formal validation whatsoever.

The only two pieces of authentication used to validate the laptop at trial were the fact it had accessed Hunter’s iCloud account (but Zoe Kestan testified at trial that so had her own laptop), and that JPMI had sent an invoice to Hunter’s public iCloud email.

That was it.

The laptop and the most damning evidence against Hunter all came in without the most basic kind of validation. And as a result, we still can’t say with certainty we know fuckall about its provenance. Nor can we say whether its existence as a collection of evidence was doctored by hostile players (who would just as likely be Republican rat-fuckers as Russian spies).

We simply don’t know, and anyone claiming they do, is lying or withholding reporting and testimony that could have come in as part of the trial.

So we still can’t say whether the most famous prop in this whole story involved fabrications or manipulations or merely the disordered digital life of a hopelessly addicted man.

Hunter has been pardoned from these convictions (though James Comer has promised to continue hounding him going forward). Even still, these nine instances of dodgy evidence used against the President’s son provide lessons — none pretty — about what we should expect going forward.

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You Can’t Pardon America’s Way Out of Trump’s Assault on Rule of Law

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The NYT has matched Jonathan Martin’s reporting that Biden’s aides are considering pardoning some subset of the people who will be targeted by Trump.

Those who could face exposure include such members of Congress’ Jan. 6 Committee as Sen.-elect Adam Schiff (D-Calif.) and former GOP Rep. Liz Cheney of Wyoming. Trump has previously said Cheney “should go to Jail along with the rest of the Unselect Committee!” Also mentioned by Biden’s aides for a pardon is Anthony Fauci, the former head of the National Institute of Allergy and Infectious Diseases who became a lightning rod for criticism from the right during the Covid-19 pandemic.

The West Wing deliberations have been organized by White House counsel Ed Siskel but include a range of other aides, including chief of staff Jeff Zients. The president himself, who was intensely focused on his son’s pardon, has not been brought into the broader pardon discussions yet, according to people familiar with the deliberations.

The conversations were spurred by Trump’s repeated threats and quiet lobbying by congressional Democrats, though not by those seeking pardons themselves. “The beneficiaries know nothing,” one well-connected Democrat told me about those who could receive pardons.

Smart lefty commentators are embracing the concept.

With the possible exception of Mark Milley, I think this is an exceedingly stupid idea. It’s the kind of magical pony thinking that led people to demand Merrick Garland, with no effort from them, make Trump go away, thereby ceding the ground for Trump to claim he was prosecuted in a witch hunt.

And it won’t work.

Biden’s pardon won’t even save Hunter Biden

Start with the fact that Biden’s pardon won’t even save his own son.

Sure, it’ll save him from going to prison for the crimes for which he was convicted.

But it might not even insulate him and his team from further harassment. That’s true, first of all, because prosecutors have continued to pursue an investigation — no doubt facilitated by the House investigation into Hunter — into whether Kevin Morris’ support for Hunter in 2020, as he was trying to sustain sobriety, amounted to a campaign benefit for Joe Biden.

While pursuing the false allegations of foreign-influence wrongdoing led nowhere, the Special Counsel seems to have given in to other demands to expand his investigation of Hunter, his family, and those close to them. Throughout 2024, Special Counsel prosecutors have sought information about financial support Hunter received in 2020 and 2021 around the time of the 2020 presidential election and questioned whether such support could be deemed improper political contributions. This latest inquiry is the exact demand that the disgruntled IRS agents alluded to in their statements to congressional committees and the media.92 The results of this investigation expanding—the theory of which was rejected in the case of former Senator John Edwards93—are nevertheless likely to be a focal point of any final report the Special Counsel prepares for Congress, which will no doubt result in more demands for baseless charges against Hunter.

Nothing in Hunter’s pardon protects Morris or, through him, Abbe Lowell. Indeed, I expect this prong of the investigation is one reason prosecutors fought to terminate Hunter’s prosecution, rather than dismiss the indictment: because it would make it easier to use the prosecution to show some benefit.

Plus, as far as I know, David Weiss will still have his Special Counsel report to write up, and because Alexander Smirnov has his existing false statement charge and a new tax indictment ahead of him (to say nothing of an appeal of David Weiss’ Special Counsel appointment under the same argument via which Trump got his own documents case dismissed), the report will go to Pam Bondi and not Merrick Garland. So Hunter can expect to be dirtied up some more in that report.

More importantly, House Republicans have already floated bringing Hunter in for more testimony. In recent years, the House GOP has spun entirely free of gravity and facts, so it would (and did, particularly in their referral of Hunter’s uncle Jim) take little to refer Hunter for prosecution on false statements.

Nothing about Hunter’s pardon will prevent Republicans from inventing new crimes going forward.

That’s true of anyone on a list. If you pardon Anthony Fauci, nothing prevents Congress from calling him to testify again to invent some new reason to prosecute him.

There are too many targets to play whack-a-mole

Another reason pardoning your way out of this problem won’t work is because there is an infinite supply of potential targets, but a finite attention span with which to protect them. As I noted, the Kash Patel enemies list on which the discussion is focused is dated; it excludes three of the names — Jack Smith, Liz Cheney, and (even!) Anthony Fauci — that, per NYT, are at the center of the discussion (Adam Schiff and Mark Milley are on there). Mike Flynn has his own list. Random mobs of MAGAts also have their own.

Olivia Troye, Kash’s current focus, is (as far as I know) on none of them.

Much of this discussion simply disappears most of the people who’ve already gone though this, who will continue to be targeted so long as there’s utility to it.

Importantly, the more invisible or easily dehumanized targets are, the easier they will be to take down.

Jack Smith, Liz Cheney, Anthony Fauci, Adam Schiff, Mark Milley? They’re all people that some very powerful people will fight for, or at the very least be discomforted as they watch passively. Those would be the easiest cases to defend.

There are legal privileges to protect

One reason, for example, that Adam Schiff”s targeting might discomfort those who absolutely loathe him is because, to punish him for his imagined sin — speaking openly of Trump’s “collusion” with Russia in 2016 and daring to pursue him in impeachment after impeachment — would solidly be protected by Speech and Debate. The same is true of Liz Cheney.

To go after Adam Schiff for his imagined crimes, you’d have to rely on litigation approaches that might make — say — Mitch McConnell queasy.

Which may be one reason Schiff told Politico he thinks the whole idea is unnecessary.

“I would urge the president not to do that,” Schiff said. “I think it would seem defensive and unnecessary.”

Plus, the opinion via which Scott Perry protected many of the communications from his phone was signed by Karen Henderson, Greg Katsas, and Neomi Rao, the latter of whom are Trump appointees.

The same is true for Jack Smith (or Jay Bratt, whom Republicans also want to target). As prosecutors, they have broad immunity for their actions. That may have its drawbacks. But a whole lot of people who would be reporting to Pam Bondi have a lot invested in defending them.

If you pardon the easiest, highest profile, easily defended targets, you’ll leave weaker targets unprotected.

It would forestall the long overdue defense of rule of law

There’s this fantasy — assisted by shoddy legacy media coverage — that this kind of retaliation didn’t happen in the first Trump Administration.

Peter Strzok and Lisa Page would beg to differ with you.

Andrew McCabe would beg to differ with you.

Marie Yovanovitch would beg to differ with you.

Alexander Vindman would beg to differ with you.

Michael Cohen would beg to differ with you.

Michael Sussmann would beg to differ with you.

Igor Danchenko would beg to differ with you.

Dis- and misinformation researchers would beg to differ with you.

51 spooks who exercised their First Amendment rights would beg to differ with you.

John Bolton would beg to differ with you.

Hunter Biden would beg to differ with you.

Some of these cases got a lot of attention. Michael Cohen has done a superb job of making himself the center of attention; he knows what he’s dealing with. Many got the wrong kind of attention; certain outlets sent rabid packs of 20 journalists to cover the Hunter Biden legal case, without sending a single journalist interested in rule of law.

But Trump’s efforts have been most successful when they didn’t, when all the same people screaming we need to do pardons looked away.

What this moment requires is not a magical pony, some gimmick that will protect the strongest targets while ceding moral high ground, but a return to the work of actually defending rule of law day to day, especially those who are easy to isolate or demonize. This moment also requires actual journalism. I shouldn’t be the only one who cares about Hunter Biden’s due process rights more than his ickiness.

And yes, I realize that means that people will continue to get hurt, just as they’ve been getting hurt going back to 2017. Trust me, like many other people, I’m doing my own risk mitigation for the days ahead.

Pardoning the highest profile likely current targets of Trump capitulates to Trump’s narrative that there is no rule of law, there’s just one party against another. Instead defending the conduct of the people Trump targets takes a lot more work, a lot more courage. But without that work, Trump has won the fight.

Mark Milley’s defense of the Constitution

For most of the targets in question, the story you’d tell would be precisely the one Trump wants you to tell. If you pardon Cheney and Schiff because they investigated Trump, for example, you condone his narrative that that’s a crime.

It’s not.

If you pardon Fauci because he made difficult health insurance according to the best — albeit imperfect — science, you condone the pack of cranks Trump plans to install in every health-related agency.

But Mark Milley is different.

He’s different because the reason why Republicans would target him is that he upheld the Constitution, rather than Trump.

He’s different because he did something crucial — reaching out to his counterparts overseas to deescalate threats of nuclear catastrophe. Republicans want to spin that vital work as treason.

He’s different because a prosecution of Milley will be used as an excuse to deprofessionalize the military officer corps.

And he’s different because Trump might try to target Milley via military justice or might seek penalties not on the table for his other targets.

I don’t know if Milley wants that protection or if, like Schiff, he would prefer to defend his own actions. That’s his business.

The point though is nothing Biden can do will eliminate the risk that Trump will keep doing what he has been doing for eight years. Someone or someones will be that target, and imagining we can make that risk go away, it’ll only lead people to look away again instead of giving the attention the focus that it has lacked.

If we don’t find the solution to that problem, if we seek instead a quick fix, then it’ll get continually harder to defend rule of law as Trump stacks the courts and guts the guardrails at DOJ.

You can’t pardon your way out of Trump’s attack on rule of law. It’s going to take much harder work than that.

Update: Ian Millhiser makes the same argument about the inefficacy of pardons, noting as well that pardons can’t prevent lawsuits or state retribution.

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Kash Patel’s Bullets

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Since Tim Miller posted it, I haven’t been able to stop looking at Kash Patel’s enemies list.

It’s not that Kash has an enemies list — though that’s an alarming accessory in an FBI nominee.

It’s the nature of the list, both the physical nature of it, but also its composition (the latter of which Philip Bump also discussed).

First, it’s dated — even more dated than it probably had to be for its September 2023 publication date. The most recent villain on the list may be Cassidy Hutchinson, who became a villain in June 2022. Jay Bratt, who became a personal villain to Kash when compelling his testimony in Trump’s stolen documents case no later than November 2022, is not on the list. Nina Jankowicz is on the list. She became a villain around the same time Hutchinson did: when the Biden Administration briefly tried to do something about disinformation until right wingers misrepresented some things she had said about Christopher Steele and the Hunter Biden laptop, which led her to resign and the effort to crash by July 2022. The description of James Baker as the former Deputy General Counsel of Twitter reflects Elon Musk’s firing of him for trying to maintain the privacy of records from Matt Taibbi et al; but Baker may be there as one of Kash’s Durham villains, because other Twitter File villains — most notably Yoel Roth — don’t appear on the list, nor any of the other disinformation experts who’ve been targeted non-stop since the Twitter Files.

Then there are the organizational characteristics. Hutchinson, like Michael Atkinson and Joe Biden, above, as well as Jim Comey, Crossfire Hurricane FBI Agent Curtis Heide, have bullets betraying some formatting problem, as if Kash added a bunch of people to an existing list. “Oh, and that Joe Biden guy! He’s a villain too!” as if he had to delay admitting that Biden was actually President (though Kamala Harris’ bullet is formatted like everyone else’s).

That’s not Kash’s most serious organizational problem. He claims the list is “alphabetical by last name.” But Joe Biden, with his funny bullet, comes after Stephen Boyd. Heide, another funny bullet, comes after Fiona Hill. Charles Kupperman comes after Loretta Lynch. And Alexander Vindman appears between Andrew Weissmann and Christopher Wray.

How are you going to systematically work through your enemies list if you can’t even alphabetize them properly?

Finally, Kash notes that his list is not exhaustive:

It does not include other corrupt actors of the first order such as … members of Fusion GPS or Perkins Coie…

But he’s wrong about that. The list includes Nellie Ohr primarily because she was an “Independent Contract [sic] for Fusion GPS.” And it includes Michael Sussmann as a “former partner at Perkins Coie.” The only other worthy villain for someone like Kash who had been at Perkins Coie — Republican nemesis Marc Elias — left Perkins Coie even before Sussmann did.

This list evinces a mind that struggles with basic structures, not an evil mastermind ready to hit the ground running.

That doesn’t mean it’s not dangerous.

The fact that this sloppily organized list is two years old suggests one of the problems with attempting to forestall Trump and Kash’s vengeance by pardoning the people on the existing enemies list. These are yesterday’s enemies, and Trump’s minions have no limit on their ability to find new ones.

Just yesterday, after all, Kash demonstrated the point. Jesse Binnall threatened to sue Olivia Troye for calling Kash a liar.

On December 2, 2024, you appeared as a live guest on MSNBC and made several false and defamatory statements about Mr. Patel. These comments include that Mr. Patel would “lie about intelligence” and would “lie about making things up on operations” to the point where Mr. Patel “put the lives of Navy Seals at risk when it came to Nigeria,” and that Mr. Patel was even misinforming Vice President Mike Pence.

This is a complete fabrication, and you know it is false by virtue of your former position in the White House.

Mark Zaid, who is already representing Troye in a lawsuit filed by Ric Grenell, has a fundraiser to support what is no doubt going to be booming business going ahead.

On the one hand, this demonstrates that Kash will simply add new enemies to an ever evolving mis-alphabetized list, targeting each new person who tells the truth about him.  Like the campaigns targeting disinformation that didn’t make Kash’s book, this assault on enemies is an assault on the truth.

Those not on a list focused on Crossfire Hurricane and Trump’s first impeachment are not safe.

Nor can criminal pardons protect targets (and in some ways would be counterproductive) in the face of efforts to harass critics, because these people will sue make-believe cows just to harass a critic.

At the same time, consider how stupid it is to target Troye in this way if you’re an aspiring J Edgar Hoover. In two months, Kash may well have the ability to target Troye with government sanction. Instead of waiting, Troye’s comments will benefit from the Streisand Effect. Since she stands by her claims, Troye may get more opportunities to explain how Kash lied to Mike Pence, to the press, and possibly even to the Senate Judiciary Committee.

Plus, there are at least a few Republican Senators who likely know and trust Troye more than they do Kash, so he has added surface area for attack in his own confirmation process.

And if Kash tries to target Troye if and when he does have the power to do so legally, it’ll be an immediate red flag for judges that the FBI — the entire FBI — is not to be trusted.

Don’t get me wrong. If Kash can get confirmed, he’ll supervise 35,000 people, almost all of whom would be able to alphabetize his enemies list and a good chunk of whom would be able — even with FBI’s notoriously archaic computer systems — to automate them. That’s what they do. That’s the danger of putting a guy with an enemies list in charge of the Bureau.

But there’s so much about this list that betrays a guy obsessed with reliving his best moment, a guy who used Congress’ oversight infrastructure to trick the world into supplanting the real Russian investigation with the Steele dossier.

Back in his heyday, Kash’s Nunes memo served simply to project, to obscure the legitimate basis for the Russian investigation. Kash succeeded in telling the origin myth Trump needed from which he has spun all the polarization that followed.

But now, he’s just playing a frantic whack-a-mole, striking at anything or anyone that might speak the truth.

That’s incredibly dangerous. The arbitrary nature is, itself, part of the intended terror.

But it’s also the cry of a guy who doesn’t understand what he’s looking at.

Update: This description of Kash’s book (which I’m hoping to avoid reading) is utterly consistent with this enemies list.

But a truth starts to dawn as Patel unleashes on the FBI: He doesn’t know a lot about it. He hasn’t worked in it, experiencing it only at arms length as an aide of Nunes’s, and viewing it through a prism of deceit of his own choosing.

That is, Kash has to invent a Deep State, but it bears little resemblance to the real thing.

Update: After standing by her comments, Troye offers to testify at Kash’s confirmation hearing.

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How Trump Rolled Out this Kash Patel Pick Is Part of Spinning False Claims about Rule of Law

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I was busy serving Thanksgiving Dinner and watching Irish election returns yesterday when Trump announced Kash Patel as his pick to be FBI Director. I’ve long been assuming that, wherever Patel ended up, he would have access to any files at FBI (look to John Solomon and Catherine Herridge to have a lot of inside tracks on propaganda). So the question was just a matter of how Trump gave Patel access to politicize FBI. By picking Patel as the Director rather than Deputy Director (only the former of which requires confirmation), Trump did so in the maximally confrontational way.

Here are four thoughts on how that confrontation plays out.

First, by picking Kash and including false claims about the Deep State in his announcement, Trump forces journalists to address his false claims. Here’s how Devlin Barrett and Maggie Haberman chose to replicate Trump’s false claims with no correction, for example.

Mr. Patel has been closely aligned with Mr. Trump’s belief that much of the nation’s law enforcement and national security establishment needs to be purged of bias and held accountable for what they see as unjustified investigations and prosecutions of Mr. Trump and his allies.

Mr. Patel “played a pivotal role in uncovering the Russia, Russia, Russia Hoax, standing as an advocate for truth, accountability and the Constitution,” Mr. Trump said in announcing his choice in a social media post.

He called Mr. Patel “a brilliant lawyer, investigator and ‘America First’ fighter who has spent his career exposing corruption, defending Justice, and protecting the American people.”

Mr. Patel, a favorite of Mr. Trump’s political base, has worked as a federal prosecutor and a public defender, but has little of the law enforcement and management experience typical of F.B.I. directors.

It is provably false that the investigations into Trump were partisan. There were three investigations of Hillary during the 2016 election (the server investigation, the Clinton Foundation investigation predicated off of right wing oppo research, and a third that was probably the Emirates’ effort to cozy up to her campaign). Joe Biden was investigated for retaining classified documents, just like Trump was. Thousands of other people were investigated for January 6.

Your choice to describe Trump’s false claim (and describing it as a belief, which you cannot know) without correction is simply participation in propaganda. (Politico at least called out Patel for “perpetuating conspiracy theories about the 2020 election.”)

And what Trump calls a hoax resulted in judgments that Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker all lied to cover up what really happened with Russia in the 2016 election. Journalists could choose to state that every time Trump calls it a hoax. NYT has almost never chosen to do that, which is how Trump’s propaganda works so well.

But longtime FBI journalists like Barrett will offer some other reason why Patel is a terrible pick — here, insinuating he doesn’t have the experience to do the job. I don’t know: After babysitting Ric Grenell at ODNI, Kash babysat Christopher Miller at DOD. That’s high level — if brief — experience.

Others — like CNN — look to the 10-year term set by statute to suggest Patel’s appointment is problematic.

FBI directors serve 10-year terms in part to shield the bureau’s leader from political pressure. FBI directors serve decadelong terms as the result of a post-Watergate law passed in response to J. Edgar Hoover’s controversial 48-year leadership of the agency.

The breaking of this norm is not new for Trump, who fired Comey shortly after taking office in 2017. Comey, who helmed the FBI during the investigation into Russian interference in the 2016 presidential election as well as the Hillary Clinton email controversy, was fired by Trump in May 2017 after serving in the position for over three years.

It’s true there’s a 10-year term. But I looked: Only William Webster served 10 and only 10 years. Robert Mueller was kept overtime, in part because he had authorized surveillance programs that were under fire. Louis Freeh resigned in the midst of scandals, leaving the seat open in advance of 9/11. Comey, of course, was fired because he wouldn’t kill the investigation into Mike Flynn before Mike Flynn confessed to lying to cover up his calls with Russia’s ambassador.

I raise that point because the question of whether Kash’s politicization of the Bureau would be so detrimental that it would lead to threats against the US going undisturbed should be the key issue in this confirmation fight. Undoubtedly, corruption (including in the form of Jared’s father being appointed to be Ambassador to France, which Trump also announced yesterday) will start to erode US remaining integrity, up and down government and the economy. It’s certainly possible that counterintelligence and hacking threats will go ignored; already in the first Trump Administration, people with expertise on Russia were driven out, and that would presumably continue. Mis- and disinformation would be protected.

Are those who oppose a Kash appointment able to explain those risks, which is what has really driven Director’s terms?

The Kash appointment heightens my interest in what DOJ Inspector General Michael Horowitz will do going forward. Trump has threatened to fire the Inspectors General and Horowitz is the most prominent — but Chuck Grassley has pushed back. That said, Horowitz has survived where he is by catering to Republican demands. So I’m wondering not just whether Horowitz could survive in the job, which would serve as a strong check on Patel. But also whether we’ll get two reports that will expose Trump’s past politicization in ways important to a potential Patel pick.

The report on January 6, for example, will lay out how Jeffrey Clark tried to take over DOJ to make it into an object of Trump’s reelection. It will also describe how FBI’s treatment of right wing extremists as informants undermined DOJ’s ability to anticipate January 6. Horowitz has committed to try to release this report by inauguration, but if he does, it could precipitate his firing.

There’s also a report on the investigation of journalists and Members of Congress to find sources for anti-Trump coverage in the first Trump term. This is precisely the kind of politicized investigation that Kash has promised (he has specifically promised to go after people who accurately report on things like the Hunter Biden laptop). The report is badly overdue, but it also threatens to trigger a backlash.

Finally, consider two aspects of the timing of this pick. First, by announcing it now, Trump has made Chris Wray a lame duck. Anyone investigating something that might implicate Trump — such as those investigating Polymarket CEO Shane Coplan — will know that they will have no top cover in a matter of weeks. That was already true, mind you: Pam Bondi would see to that. Plus, it was already clear that Trump was going to replace Wray. Still, this could have a chilling effect on ongoing investigations — or it could create very interesting martyrs at the beginning of Trump’s term.

Then there’s another aspect to the timing. Trump announced this pick — as he did the decision implanting all his defense attorneys at DOJ — while Jack Smith’s prosecutors are working on their report. And Kash should show up in that report, at least to lay out his false public claims that Trump had declassified all the documents he took with him (and possibly even his demand that he got immunity before giving that testimony). I’m not sure how central that will be to a report. But Trump had a choice about how confrontational to be with how he installed Kash in a place to dismantle the so-called Deep State, and his choice to be maximally confrontational may have a tie to this report.

People are currently thinking of all the other ways Kash has helped serve Trump’s false claims in the past — the false claim that the Russian investigation was predicated on the Steele dossier, efforts to override Ukraine experts during that impeachment, attempts to misrepresent the Russian investigation. But the Smith report may well explain that Trump’s FBI Director nominee played a more central role in Trump’s effort to spin Trump’s efforts to take hundreds of classified documents home. So when Kash gets a confirmation hearing, it will put the veracity of the Smith report centrally at issue. If Senators find the report convincing, they should have renewed cause to reject Patel’s nomination, but Trump has almost without exception forced GOP Senators to believe his false claims to avoid scary confrontations with him, so I wouldn’t bet against Trump and Kash.

Trump has spent eight years sowing propaganda about his own corruption and crimes. Not just Patel’s nomination to a position in which he could thoroughly politicize rule of law, but also the means by which Trump made that nomination, is part of that same project.

We have a brief two months to try to reverse eight years of propaganda, propaganda often assisted by journalists playing data mule for Trump’s Truth Social propaganda or exhibiting laziness about correcting his false claims. If Trump succeeds, it will grow far more difficult to sort out truth from crime anymore.

That was always going to be true. But the means by which Trump is conducting his effort is all part of the propaganda campaign.

Update: Roger Parloff linked the 302 interview with someone who is likely Eric Herschmann describing someone who is almost certainly Kash Patel lying about having a standing declassification order.

Also, LOLGOP re-released our Ball of Thread episode that focuses closely on Patel’s propaganda about Crossfire Hurricane.

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With Matt Gaetz, Donald Trump’s Myth Cannot Fail — It Can Only Be Failed

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Folks, I know this is bad timing, but in about 20 minutes, I’m going to temporarily shut down comments here, as we’re going to do some planned maintenance. Hopefully it won’t take too long.

I keep thinking back to this June 2023 exchange between Matt Gaetz and John Durham.

It came at the end of Durham’s testimony after delivering his report, in which Durham said a lot of inflammatory things, but ultimately concluded that the allegations of Russian interference should have been investigated, but should have been opened at a lower level of investigation.

After four years, Durham blamed Hillary Clinton for things Russians (like those suspected of filling the Christopher Steele dossier with disinformation) had done. But he hadn’t done the one thing Republicans needed him to do: assert that the Russian investigation was a hoax.

At the end of it, Jim Jordan adopted a tactic he has come to use in his hearings. He took a break for votes, giving staffers a half hour to prepare a rebuttal. And then three Republican members took turns, including Matt Gaetz for his second turn, unrebutted by any Democratic member.

He came prepared.

Gaetz cued up video from Robert Mueller’s July 2019 testimony, showing Jim Jordan grilling Mueller about Joseph Mifsud. Jordan asserted that Bill Barr and John Durham were trying to find out what Mifsud was doing. After Durham responded that they did try to pursue that angle, Gaetz asserted that Durham’s investigation was “an op.”

You had years to find out the answer to what Mr. Jordan said was the seminal question, and you don’t have it. It just begs the question whether or not you were really trying to find that out. Because it’s one thing to criticize the FBI for their FISA violations, to write a report. They’ve been criticized in plenty of reports. Some have referred to your work as just a repackaging and regurgitation of what the Inspector General already told us. So if you weren’t going to do what Mr. Jordan said you were going to do in that video, and give us the basis for all of it, what’s this all been about?

Now, in point of fact, who Mifsud really was was never the seminal question. Or rather, he only ever became a question via conspiracy theories Jordan and Mark Meadows laundered through a sham Congressional appearance from George Papadopoulos. Under their direction, the Coffee Boy provided no primary documentation with which staffers could hold him to account. Instead, Papadopoulos laundered conspiracy theories first posted in right wing propaganda outlets.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. [my emphasis]

And that’s what led Barr and Durham to jump on a plane together and chase Papadopoulos’ conspiracy theories — without ever interviewing Papadopoulos directly. Mifsud’s own lawyer — the one who couldn’t help Durham figure out how to subpoena him — who started the conspiracy theory that Mifsud worked for Western, not Russian, spies.

Durham and Barr did more than just chase Papadopoulos’ conspiracy theories together. Durham fabricated a key part of the theory of his case. He ignored key events — most notably, Trump’s invitation for Russia to hack his opponent — that made all the actions of Hillary’s people make sense. He relied on a Twitter account as the foundation of his indictment against Igor Danchenko, then whined when such communications were deemed inadmissible without a witness to introduce them.

Yet ultimately, the rules of criminal procedure and some very very good defense attorneys (no doubt paid with life savings) managed to thwart Durham’s efforts to spin from his own fevered imaginations a conspiracy implicating Hillary Clinton.

For that, Matt Gaetz accused Durham of “inoculating” the FBI.

Your report seems to be less an indictment of the FBI and more of an inoculation — lower case I, of course. And like many inoculations, it may have worse consequences down the road. It’s just hard to pretend as though this was a sincere effort. When you don’t get to the fundamental thing that started the whole deal.

Because reality ultimately debunked Durham’s conspiracy theories, Gaetz deemed him to be part of the Deep State.

I get that Matt Gaetz’ nomination is one of the most likely to be rejected by the Senate. I get that there’s still a chance this guy — the guy who proclaims even a fellow conspiracist part of the Deep State if he permits himself to discover that reality doesn’t back his fever dreams — won’t be Attorney General.

But this is what it means that Trump wants to take a hammer to DOJ and FBI: not just that they’ll avoid any investigations implicating Trump or his allies, but they will find a way to meld reality to their own myth.

As it was, Bill Barr’s DOJ added post-it notes to evidence in ways that happened to feed Trump’s myth of grievance. They claimed travel records of the informant with something akin to a Let’s go Brandon cap matched his claims about Joe Biden accepting a bribe when, purportedly, the opposite is true.

Bill Barr’s DOJ already made shit up to feed Trump’s myth.

Since then, a Trump judge admitted a laptop full of evidence at a criminal trial with little more validation than an access to an iCloud account to which multiple outsiders had access, and an email sent to a publicly available email address.

But whoever Trump installs atop DOJ will take all this one step further. No longer will it be a select crony US Attorneys who forget to remove post-it notes with erroneous but convenient dates or claim travel records say the opposite of what they actually say. It will be the litmus test from the top: Donald Trump’s myths cannot fail, they can only be failed.

Update: Gaetz has withdrawn from consideration.

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David Weiss Dons His “Let’s Go Brandon” Frame

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In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

November 1: Government motions in limine

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

October 31: Government response to motions in limine

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