At the time Trump called him and then-Michigan Senate Majority Leader Mike Shirkey to the White House in November 2020, Chatfield was Michigan’s House Speaker. And one of the first things that I realized about the appendix is that Jack Smith relied on Shirkey’s January 6 interview — exclusively, it seems. But he relied — again, exclusively — on DOJ’s own interview with Chatfield (which appears, in sealed form, at roughly pages GA 70 through GA 82). To confirm that that was Chatfield and try to puzzle through why Smith might rely on J6C interviews for some people but do his own interview for others, I took the trouble to index the identifiable interviews. Among other things, I discovered a third interview pertaining to Michigan, a witness whose name falls between Barr and Bowers (Michigan State Senator Tom Barrett also attended the meeting, but it could also be MI Secretary of State Jocelyn Benson), as well as about 36 pages of interview transcripts, from GA 323 to 359, from Ronna McDaniel.
My original hypothesis about why Smith did his own interview of Chatfield was probably wrong. Chatfield was indicted in Michigan for embezzlement in April, and I figured you’d want to lock in the testimony of someone who is in legal trouble himself. A more likely explanation is that Chatfield’s interview with J6C was considered informal, so Smith had to get more formal testimony.
But one thing it the additional interviews allowed Smith to do was sort through a seeming discrepancy about the meeting. As the January 6 Committee Report noted, Shirkey and Chatfield had slightly different memories of the event, with Shirkey denying that Trump made any precise ask, whereas Chatfield described that he understood Trump’s “directive” about having “backbone” to be a request to overturn the election by naming fake electors.
Although Shirkey says he did not recall the President making any precise “ask,” Chatfield recalled President Trump’s more generic directive for the group to “have some backbone and do the right thing.”157 Chatfield understood that to mean they should investigate claims of fraud and overturn the election by naming electors for President Trump.158 Shirkey told the President that he was not going to do anything that would violate Michigan law.159
157. Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Lee Chatfield (Oct. 15, 2021). Leader Shirkey did not remember any specific “ask” from the President during the Oval Office meeting. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Michael Shirkey, (June 8, 2022), p. 16 (“One thing I do remember is that he never, ever, to the best of my recollection, ever made a specific ask. It was always just general topics[.]”).
158. Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Lee Chatfield (Oct. 15, 2021).
159. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Michael Shirkey, (June 8, 2022), p. 57.
As it is, there’s something missing in this telling. The report describes that Rudy Giuliani was on the call. But it makes no mention that, even though she had specifically told Trump she couldn’t be involved in a meeting with legislators because it might amount to lobbying, he had patched Ronna McDaniel into the call.
That detail does appear in Mike Shirkey’s testimony (he claimed that she said nothing of substance). But Shirkey offered the detail of McDaniel’s participation long after Chatfield’s “informal interview” on October 15, 2021 and a week after McDaniel’s own interview on June 1, 2022, in which her participation in the call never came up.
Smith’s brief doesn’t say much about what McDaniel said, though this section does cite to what must be her interview. He did reveal that McDaniel made the initial contact with Shirkey and Chatfield, then got looped into the call after being warned against participating.
On November 20, three days before Michigan’s Governor signed a certificate of ascertainment appointing Biden’s electors based on the popular vote, the defendant met with [Mike Shirkey] and [Lee Chatfield], Michigan’s Senate Majority Leader and Speaker of the House, at the Oval Office.148 The defendant initiated the meeting by asking RNC Chairwoman [McDaniel] to reach out to [Chatfield] and gauge his receptivity to a meeting.149 The defendant also asked [McDaniel] to participate in the meeting, but [McDaniel] told him that she had consulted with her attorney and that she could not be involved in a meeting with legislators because it could be perceived as lobbying.150 After [McDaniel] made the first contact, on November 18, the defendant reached out to [Shirkey] and [Chatfield] to extend an invitation.151
Shirkey testified that Trump made no specific ask. But, as noted, Chatfield was more equivocal.
The January 6 Committee described Chatfield’s description of Trump’s calls in the following weeks.
That was not the end, however. Chatfield and Shirkey received numerous calls from the President in the weeks following the election. Chatfield told the Select Committee that he received approximately five to ten phone calls from President Trump after the election, during which the President would usually ask him about various allegations of voter fraud.161 Chatfield said that he repeatedly looked into the President’s claims but never found anything persuasive that could have changed the outcome of the election.162
But it doesn’t provide a detail about follow-up calls included in the immunity brief: That Rudy contacted Chatfield and asked him to throw out the valid votes.
Despite failing to establish any valid fraud claims, [Rudy] followed up with [Shirkey] and [Chatfield] and attempted to pressure them to use the Michigan legislature to overturn the valid election results. On December 4, [Rudy] sent a message to [Chatfield] claiming that Georgia was poised to do so (based on [Rudy’s] and [John Eastman’s] false advocacy there in the December 3 hearing) and asked [Chatfield] for help: “Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As [Eastman] explained they don’t just have the right to do it but the obligation. . . . Help me get this done in Michigan.”168 On December 7, [Rudy] attempted to send [Shirkey] a message (though failed because he typed the wrong number into his phone): “So I need you to pass a joint resolution from the Michigan legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.”169 Campaign operative [Mike Roman] was involved in the drafting of this message with the assistance of [P41] who was associated with the defendant’s Campaign efforts in Michigan.170 The following day, [Rudy] shared the draft with the defendant, sending it to his executive assistant, [Molly Michael], by email.
That’s a far more specific ask than Chatfield admitted to with J6C.
This passage is all sourced to an entirely sealed section of Appendix III, but the type of evidence included there is somewhat obvious. The section relies on:
168: A text to Chatfield
169: Something recording Rudy’s attempt to send a text (to the wrong phone number!) and 10 more pages documenting what message Rudy wanted to send.
170: One page showing some proof that Mike Roman and [P41] were involved in this messaging attempt.
171: Rudy sharing the draft with Trump, via Molly Michael.
It’s possible this evidence doesn’t include evidence obtained from Rudy’s phone in April 2021; for example, Smith could prove that Rudy missent the text via Rudy’s call data and the text to Chatfield, showing a very specific ask, could have come from Chatfield. The text to Shirkey could not have come from Shirkey, though, because he never received the message (which may be why Shirkey was much sketchier about any asks from Trump than Chatfield, because he didn’t receive this shamelessly direct ask). But, particularly given that the email to Michael is just one page long (when asked, she provided no specifics about communications pertaining to Chatfield and Shirkey in her J6C interview), it may well have partly relied on that phone seizure and may well have been necessary.
If it came from the phone, though, it came from legal steps Lisa Monaco first put into motion on her first day on the job, months before J6C was even formalized.
Wherever it came from, the added detail could be utterly critical to proving the case against Trump. Before you get this additional evidence (from both Rudy’s and, possibly, Roman’s phone, as well as an email sent to Molly Michael), you’ve got Chatfield and Shirkey claiming Trump made no specific ask. After you get the additional evidence (and so long as you reach the bar of proving that Rudy was Trump’s co-conspirator in this nefarious effort), you have a very specific ask to just throw out the legal votes that Rayne and I and millions of other Michiganders cast for Joe Biden in 2020.
https://www.emptywheel.net/wp-content/uploads/2013/01/alice-in-wonderland1.jpg390296emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-23 12:34:102024-10-23 17:48:16The Disappearing Cheshire Cat I Found in the Rabbit Hole Where Lee Chatfield Was Hiding
As you know, I’ve been tracking Kamala Harris’ outreach to Republicans, Liz Cheney above all, with a good deal of interest. I’ve spoken about why it makes sense from a demographic perspective; if Harris can attract some of Nikki Haley’s voters, it could put her over the top in these 50/50 states. I’ve described how seeing endorsements from people like Liz Cheney and her father create a permission structure for other Republicans to take the risk of voting for Harris.
More recently, I described that events with Liz Cheney and other Republicans provide a news hook for Trump’s fascism that cannot be dismissed as partisanship.
I’ve even observed (though perhaps only on social media) that events with Liz Cheney provide Harris a way to get out of an ethical dilemma. As Vice President, she should not discuss pending Federal cases against a criminal defendant, including the January 6 case charged against Trump. But Liz Cheney can. And Cheney happens to be an expert. In the events she did and is doing and still will do with Harris today, Cheney prosecuted the January 6 case against Donald Trump. And as she described how Trump sat, doing nothing, as his supporters attacked Congress, one of the people behind the women nodded vigorously.
But I also realized, as I watched the Michigan version of these events today, that Harris and Cheney are also modeling democracy. They are giving people — women who are my age and Cheney’s age and moderator Maria Shriver’s age are the primary but by no means the only target — what they want: a democracy where people talk to one another.
That is, these events, at their most ambitious, are about giving people a reason to defend democracy.
That’s something Harris said as she answered the last question in the Royal Oak event.
Shriver described several people in the audience talking about how scared they are, and she asked Harris how she copes with the stress.
Not eating gummies, Harris responded.
But then, after admitting she wakes up most nights these days, she gave an impromptu speech against despair.
Let me just speak to what people are feeling. We cannot despair. We cannot despair. You know, the nature of a democracy is such that I think there’s a duality. On the one hand, there’s an incredible strength when our democracy is intact. An incredible strength in what it does to protect the freedoms and rights of its people.
Oh there’s great strength in that.
And, it is very fragile. It is only as strong as our willingness to fight for it. And so that’s the moment we’re in. And I say do not despair because in a democracy, as long as we can keep it, in our democracy, the people — every individual — has the power to make a decision about what this will be.
And so let’s not feel powerless.
Let’s not let the — and I get it, overwhelming nature of this all make us feel powerless. Because then we have been defeated. And that’s not our character as the American people. We are not one to be defeated. We rise to a moment. And we stand on broad shoulders of people who have fought this fight before for our country. And in many ways then, let us look at the challenge that we have been presented and not be overwhelmed by it.
The baton is now in our hands, to fight for, not against, but for this country that we love. That’s what we have the power to do.
So let’s own that? Dare I say be joyful in what we will do in the process of owning that which is knowing that we can and will build community and coalitions and remind people that we’re all in this together.
Let’s not let the overwhelming nature of this strip us of our strength.
That’s how I feel about this.
The entire event is worth watching.
But what the Vice President said about despair may well be the nugget of inspiration that moves us forward.
https://www.emptywheel.net/wp-content/uploads/2024/10/Screenshot-2024-10-21-at-23.02.17.png482996emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-21 18:04:462024-10-21 19:22:48Kamala Harris against Despair
Jared Wise is a former counterterrorism FBI Supervisory Special Agent who was arrested for crimes related to January 6 on May 1, 2023; he was indicted on civil disorder, assault, and trespassing charges on May 31, 2023.
In June, Wise moved to suppress a May 5, 2022 AT&T warrant and everything derivative of it, based on the theory that the warrant sought evidence of a conspiracy for which it had not presented probable cause (he is represented by Oregon’s very good FPD office). The same filing moved to suppress a photo obtained in an April 2023 traffic stop that occurred just weeks before a search of his residence. Finally, it aimed to suppress the search of his home based, in part, on staleness grounds. Then last month, Wise supplemented his suppression motion, this time arguing that a tower dump warrant obtained in January 2021 was an unconstitutional geofence warrant under a recent Fifth Circuit decision.
I took the time to read all this because I’ve been tracking the geofence challenges that come out of the January 6 investigation (see here, here, here, here, here, here) and also because I’m fascinated by the former law enforcement types who ended up attacking the Capitol. But between the government’s initial response and the response, submitted yesterday, to his supplement, they provide a fascinating picture of the FBI’s investigation into one of their own.
The government’s response argues this is not about a geofence at all. Rather, the warrant Wise claims was a geofence was instead a tower dump warrant targeting two towers that exclusively serve the interior of the Capitol, basically a search for business records of access to a cell phone tower rather than location data offered up in response to a voluntary Google service.
The filings together present this timeline of the investigation into Wise.
January 22, 2021 tower dump warrant
April 18, 2021 query of tower dump returns
October 2021 final conversation between Wise and tipster
January 10, 2022 public tip regarding Wise
January 26, 2022 interview in which tipster reveals Wise told him he was at the Capitol
May 5, 2022 AT&T warrant for 1752 and 5104 from November 1, 2020 through February 1, 2021: Disclosed Wise made 62 calls and sent 46 text messages on January 6
November 23, 2022 AT&T warrant for 1752 and 5104 from November 3, 2020 through January 31, 2021: Shows Wise still using phone
April 2, 2023 traffic stop on suspicion of altered VIN
April 12 and 13, 2023 warrant, issued in CAED but never executed
April 18 warrant shows Wise still using phone
April 24, 2023 warrant for Wise’s house, car, and person for 1752, 5104, 1512(c)(2), 111, 231, 371, 372: On May 1, FBI seizes:
Apple iPhone
Apple MacBook Pro
Burner LG Phoenix 5 (unopened)
Clothing from riot
His phone number was collected in the tower dump, but he attracted no individualized attention until someone narced him out in January 2022, at which point they found the cell phone records that he had been in the building during the 2PM hour on January 6.
At first, the FBI only obtained information to support the two trespassing charges, 1752 and 5104, used with all January 6 suspects. But the affiant of that warrant described that a search might find “help identify co-conspirators or victims,” which is why Wise claimed that this warrant was, “a fishing expedition, hoping to find some evidence of conspiracy when there is no probable cause to believe that one exists.” But, the government noted in response, at that point “the warrant authorized the seizure only of evidence related to the noted offenses.” While the second warrant, dated November 23, 2022, remained focused on the trespassing charges, it noted that,
I know that many persons who came to the Capitol on January 6, 2021, engaged in planning between the time of the November 2020 election and January 6, 2021, and that they communicated with other like-minded individuals about their purpose in coming to the Capitol using their smartphones.
Things got more interesting when — at least as described — a California Highway Patrol officer stopped Wise in April 2023, weeks before a warrant would be issued for his arrest, because the color on his registration did not match the color of the vehicle and, partly because of Wise’s Texas plates, the officer suspected VIN swapping.
The officer decided to make a traffic enforcement stop of the vehicle based on the registration return, which indicated the car’s color was blue, rather than what the officer observed to be grey. The officer knew, based on his training and experience, that there are many vehicles in the state of California that have had their Vehicle Identification Number (VIN) switched in Texas.
Wise undoubtedly believed this was a pretext stop — a stop invented solely to collect information from a suspect. As a former CT officer, he would know how they are used. And so after the officer freed him to leave, Wise got out of his car and started filming the officer.
But after he was told he was free to leave, the defendant became verbally aggressive and irritated with the officer. The defendant insisted he was stopped unlawfully and said there was another reason why the officer made the traffic stop. The officer continued to advise the defendant of the reason for the stop and told him multiple times the stop was over and that he was “free to leave.” As the officer returned to his patrol vehicle, the defendant exited his vehicle, carrying his cell phone, and appeared to be recording the officer and his vehicle. The defendant approached the officer in a slightly aggressive manner and continued to appear upset that he was stopped. The defendant requested the officer’s name and badge number, which the officer then provided. The officer again advised the defendant that the traffic stop was over and he was free to leave. After approximately two minutes, the defendant returned to his vehicle and departed.
That’s when the officer got the picture of Wise’s car, which was used in the affidavit to search Wise’s house, car, and person.
But even if the defendant’s traffic stop was improper, there was no seizure at the time the relevant photograph of the defendant was taken. Indeed, the opposite was true. The traffic stop was conducted, the defendant’s license and registration were checked and returned, and the defendant was told he was free to leave. It was over. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.”); United States v. Maynard, 615 F.3d 544, 553 (D.C. Cir. 2010) (holding that the seizure of the defendant was over after the defendant’s license and registration was returned and he was told he was free to leave), aff’d in part sub nom. United States v. Jones, 565 U.S. 400 (2012). But the defendant did not leave. Instead, after being repeatedly told he was free to leave, the defendant—who has, in other filings, opined that he is in a “unique position to admonish law enforcement,” ECF No. 33 at 32 n.8—chose to exit his vehicle, pull out his cell phone, and start recording the officer who had stopped him. It was then that the photograph subsequently used in the search warrant—seen below—was taken. In other words, the defendant voluntarily remained to reprimand a police officer, and now complains when the officer happened to document the scene using a police-issued cruiser camera.
The traffic stop’s inclusion in these suppression motions is, legally, superfluous. The government compellingly argues that they got the probable cause information to search the vehicle via other means, including surveillance of Wise and a different picture of his vehicle.
The April 2023 affidavit recites facts tying the vehicle to the defendant: it identifies the vehicle as being registered to the defendant, see Exhibit D at ¶ 2, and it cites surveillance confirming the vehicle’s presence at the defendant’s residence, see Exhibit D at ¶ 56. But the affidavit never even mentions the April 2, 2024 traffic stop. See generally Exhibit D. Instead, the pertinent photograph appears as part of an attachment identifying the vehicle to be searched. See Exhibit D at Attachment A. That attachment states “[t]he Vehicle is depicted below” and includes two photographs—only one of which is from the traffic stop.
More importantly, nothing was seized from Wise’s car; there are no fruits of a search to suppress.
On the Fourth Amendment question, this dispute appears to arise from confusion about different technologies and therefore different probable cause formulas. Some of the confusion stems from temporal lapses between the execution of a warrant and queries of data obtained from it.
But what really appears to be going on is that a very paranoid former FBI guy, one who called cops “Nazis” on January 6, believes the FBI is or was investigating him more broadly. He believed in real time and still believes (and he may be right) that when a cop stopped him during his trip to California in April 2023, it was a pretext stop designed to collect more information; there are a good number of other January 6 defendants in which such stops were used.
Ultimately, Wise came to believe “they” were out to get him, “they” were out to investigate a larger conspiracy.
In the end, they were! The search of his house included two conspiracy charges, 371 and 372, among the suspect crimes.
But instead, he’s facing two civil disorder charges for his own actions, allegedly attacking cops.
https://www.emptywheel.net/wp-content/uploads/2024/10/Screenshot-2024-10-15-at-12.46.50.png7241240emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-15 09:36:522024-10-15 09:36:52Searching for Jared Wise
When I saw the news that Trump is planning a rally at Madison Square Garden — as the Nazis did in 1939 — I checked the date to see whether that was before or after Steve Bannon gets out of prison.
Bannon is due to get out on October 29; the rally is two days earlier, on October 27. On the current schedule, Bannon will be released nine days before the election, but not soon enough to attend what will undoubtedly be a larger version of the Nazi rant that Trump put on in Aurora the other day. Unless something disrupts it, Bannon will start trial for defrauding Trump supporters on December 9, days before the states certify the electoral vote.
This is the kind of timing I can’t get out of my head. According to FiveThirtyEight, Kamala Harris currently has a 53% chance of winning the electoral college. That’s bleak enough. But based on everything I know about January 6, I’d say that if Trump loses, there’s at least a 10% chance Trump’s fuckery in response will have a major impact on the transfer of power.
Experts on right wing extremism are suggesting the same thing. Here’s an interview Rick Perlstein did with David Neiwert back in August on the political violence he expects. Here’s a report from someone who infiltrated the 3 Percenters, predicting they would engage in vigilanteism.
Will Jack Smith unveil charges about inciting violence amid election violence?
As I wrote in this post, I suspect that Jack Smith considered, but did not, add charges when he decided to supersede Trump’s January 6 indictment. As I wrote, there is negative space in Smith’s immunity filing where charges on Trump’s funding for January 6 (and subsequent suspected misuse of those funds) might otherwise be.
More tellingly, there are four things that indicate Jack Smith envisioned — but did not yet include — charges relating to ginning up violence. As Smith did in a 404(b) filing submitted in December, he treated Mike Roman as a co-conspirator when he exhorted a colleague, “Make them riot” and “Do it!!!” Newly in the immunity filing, he treated Bannon as a co-conspirator, providing a way to introduce Steve Bannon’s prediction, “All Hell is going to break loose tomorrow!” shortly after speaking with Trump on January 5. But Smith didn’t revise the indictment to describe Roman and Bannon as CC7 and CC8; that is, he did not formally include these efforts to gin up violence in this indictment. What appears to be the same source for the Mike Roman detail (which could be Roman’s phone, which was seized in September 2022; in several cases it has taken a year to exploit phones seized in the January 6 investigation) also described that Trump adopted the same tactic in Philadelphia.
The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22
Even more notably, after saying (in that same December 404(b) filing) that he wanted to include Trump’s endorsement and later ratification of the Proud Boys’ attack on the country to “demonstrate[] the defendant’s encouragement of violence,” Smith didn’t include them in the immunity filing whatsoever — not even in the section where the immunity filing described Trump’s endorsement of men who assaulted cops. If I’m right that Smith held stuff back because SCOTUS delayed his work so long it butted into the election season, it would mean he believes he has the ability to prove that Trump deliberately stoked violence targeting efforts to count the vote at both the state and federal level, but could not lay that out until after November 5, after which Trump may be in a position to dismiss the case entirely.
And the two Stephens — Bannon, whose War Room podcast would serve to show that Trump intended to loose all Hell on January 6, and Miller, who added the finishing touches to Trump’s speech making Mike Pence a target for that violence — appear to have a plan to do just that, working in concert with Elon Musk.
The two Stephens say Trump must be able to stoke violence with false claims as part of his campaign
As I laid out in June, just as Bannon was reporting to prison, both Stephens were arguing that they had a right to make false claims that had the effect of fostering violence.
Bannon filed an emergency appeal aiming to stay out of prison arguing he had to remain out so he could “speak[] on important issues.”
There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.
No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.
In the same period, Stephen Miller attempted to intervene in Jack Smith’s efforts to prevent Trump from making false claims that the FBI tried to assassinate him when they did a search of his home governed by a standard use-of-force policy, knowing full well he was gone. (Aileen Cannon rejected Miller’s effort before she dismissed the case entirely.)
Miller argued that the type of speech that Smith wanted to limit — false claims that have already inspired a violent attack on the FBI — as speech central to Trump’s campaign for President.
The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.
Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.
Miller called Trump’s false attack on the FBI peaceful political discourse.
Importantly, Miller dodged an argument Smith made — that Trump intended that his false claims would go viral. He intended for people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignored the exhibit showing Bannon parroting Trump’s false claim on his War Room podcast.
It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.
Note, Bannon did this with Mike Davis, a leading candidate for a senior DOJ position under Trump, possibly even Attorney General, who has vowed to instill a reign of terror in that position.
But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.
Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.
Back in June, Bannon said he had to remain out of prison because he played a key role in Trump’s campaign. And Miller said that even if Bannon deliberately parroted Trump’s false incendiary claims, that was protected political speech as part of Trump’s campaign.
Miller helps eliminate checks on disinformation and Nazis on Xitter
But this effort has been going on for years.
A report that American Sunlight released this week describing how systematically the right wing turned to dismantling the moderation processes set up in the wake of the 2016 election points to Miller’s America First Legal’s role in spinning moderation by private actors as censorship. Miller started fundraising for his effort in 2021.
[F]ormer Trump Senior Advisor Stephen Miller[] founded America First Legal (AFL). 6 An unflinchingly partisan organization, the home page of AFL’s website claims its mission is to “[fight] back against lawless executive actions and the Radical Left,” 7 which it accomplishes through litigation. AFL has, to date, engaged in dozens of efforts to silence disinformation research through frivolous lawsuits and collaboration with Jordan and the House Judiciary Committee’s harassment of researchers. In a digital age where social media is more prevalent than ever and social media platforms have more power than ever, AFL’s efforts to politicize legitimate efforts to combat disinformation – by social media platforms and independent private-citizen researchers – have significantly damaged the information environment. To fully realize these efforts and their impacts, we explore the founding and operations of AFL.
[snip]
After its launch in early 2022, AFL began its line of litigation with a series of FOIA requests relating to the State Department’s Global Engagement Center (GEC) and the Cybersecurity and Infrastructure Security Agency (CISA). These requests marked a noticeable uptick in conservative claims about censorship. AFL’s FOIA requests alleged these government agencies improperly partnered with social media platforms and asked for content around Hunter Biden’s laptop to be removed. 22 In its FOIA request to CISA, AFL writes 23 :
On March 17, 2022, the New York Times revealed that “[Hunter] Biden’s laptop was indeed authentic, more than a year after … much of the media dismissed the New York Post’s reporting as Russian disinformation.” When the story was first accused of being disinformation, X/Twitter suspended the New York Post’s account for seven days, and Facebook “’reduc[ed]’ the story’s distribution on its platform while waiting for third-party fact checkers to verify it.” This was just one of many instances where social media companies censored politically controversial information under the pretext of combatting MDM even when the information later became verified.
Then, as now, AFL offered no evidence to support its claim that any federal agency coerced, pressured, or mandated that social media platforms remove any such laptop-related content. As this report will cover in depth, social media platforms have their own, robust content moderation policies in regards to false and misleading content; as private companies, they implement these policies as they see fit.
The American Sunlight report describes how some of the key donations to AFL were laundered so as to hide the original donors (and other of its donations came from entities that had received the funds Trump raised in advance of January 6).
But as WSJ recently reported, Musk started dumping tens of millions into Miller’s racist and transphobic ads no later than June 2022.
In the fall of 2022, more than $50 million of Musk’s money funded a series of advertising campaigns by a group called Citizens for Sanity, according to people familiar with his involvement and tax filings for the group. The bulk of the ads ran in battleground states days before the midterm elections and attacked Democrats on controversial issues such as medical care for transgender children and illegal immigration.
Citizens for Sanity was incorporated in Delaware in June 2022, with salaried employees from Miller’s nonprofit legal group listed as its directors and officers.
There are questions of whether Miller grew close to Musk even before that.
In the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller — texted Musk personally to raise the sensitivities of restoring Trump, whom the person called, “the boss,” to Xitter.
And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.
“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.
Whoever this was — and people were guessing it was Miller in real time — someone close enough to Elon to influence his purchase of Xitter was thinking of the purchase in terms of bringing back “right wingers,” including Trump.
Yesterday, the NYT reported on how the far right accounts that Musk brought back from bannings have enjoyed expanded reach since being reinstated. Some of the most popular accounts have laid the groundwork for attacking the election.
As the election nears, some of the high-profile reinstated accounts have begun to pre-emptively cast doubt on the results. Much of the commentary is reminiscent of the conspiracy theories that swirled after the 2020 election and in the lead-up to the Jan. 6 riot.
Since being welcomed back to the platform, roughly 80 percent of the accounts have discussed the idea of stolen elections, with most making some variation of the claim that Democrats were engaged in questionable voting schemes. Across at least 1,800 posts on the subject, the users drew more than 13 million likes, shares and other reactions.
Some prominent accounts shared a misleading video linked to the Heritage Foundation, a conservative think tank, that used shaky evidence to claim widespread voter registration of noncitizens. One of the posts received more than 750,000 views; Mr. Musk later circulated the video himself.
But it’s more than just disinformation. Xitter has played a key role in stoking anti-migrant violence across the world. In Ireland, for example, Alex Jones’ magnification of Tommy Robinson’s tweets helped stoke an attack on a shelter for migrants.
As with mentions of Newtownmountkennedy, users outside of Ireland authored the most posts on X mentioning this hashtag, according to the data obtained by Sky News. 57% were posted by accounts based in the United States, 24.7% by Irish users. A further 8.8% were attributed to users based in the United Kingdom.
While four of the top five accounts attracting the most engagement on posts mentioning this hashtag were based in Ireland, the fifth belongs to Alex Jones, an American media personality and conspiracy theorist. Jones’s posts using this hashtag were engaged with 10,700 times.
Jones continued to platform Robinson as he stoked riots in the UK.
Several high-profile characters known for their far-right views have provided vocal commentary on social media in recent days and have been condemned by the government for aggravating tensions via their posts.
Stephen Yaxley-Lennon, who operates under the alias Tommy Robinson, has long been one of Britain’s most foremost far-right and anti-Muslim activists and founded the now-defunct English Defence League (EDL) in 2009.
According to the Daily Mail, Robinson is currently in a hotel in Cyprus, from where he has been posting a flurry of videos to social media. Each post has been viewed hundreds of thousands of times, and shared by right-wing figures across the world including United States InfoWars founder Alex Jones.
And Elon Musk himself famously helped stoke the violence, not just declaring civil war to be “inevitable,” but also adopting Nigel Farage’s attacks on Keir Starmer.
On Monday, a spokesperson for UK Prime Minister Keir Starmer addressed Musk’s comment, telling reporters “there’s no justification for that.”
But Musk is digging his heels in. On Tuesday, he labeled Starmer #TwoTierKier in an apparent reference to a debunked claim spread by conspiracy theorists and populist politicians such as Nigel Farage that “two-tier policing” means right-wing protests are dealt with more forcefully than those organized by the left. He also likened Britain to the Soviet Union for attempting to restrict offensive speech on social media.
In the UK, such incitement is illegal. But it is virtually impossible to prosecute in the United States. So if Elon ever deliberately stoked political violence in the US, it would be extremely difficult to stop him, even ignoring the years of propaganda about censorship and the critical role some of Musk’s companies play in US national security.
Bannon’s international fascist network
The ties to Nigel Farage go further than Xitter networks.
In a pre-prison interview with David Brooks (in which Brooks didn’t mention how Bannon stands accused of defrauding Trump’s supporters in his New York case), Bannon bragged about turning international fascists into rocks stars.
STEVE BANNON: Well, I think it’s very simple: that the ruling elites of the West lost confidence in themselves. The elites have lost their faith in their countries. They’ve lost faith in the Westphalian system, the nation-state. They are more and more detached from the lived experience of their people.
On our show “War Room,” I probably spend at least 20 percent of our time talking about international elements in our movement. So we’ve made Nigel a rock star, Giorgia Meloni a rock star. Marine Le Pen is a rock star. Geert is a rock star. We talk about these people all the time.
And in August, Bannon’s top aide, Alexandra Preate, registered as a foreign agent for Nigel Farage. She cited arranging his participation in:
A March 2023 CPAC speech
Discussions, as early as August 2023, about a Farage speech at RNC
A January 2024 pitch for Farage to speak at a Liberty University CEO Summit that was held last month
Talks at “Sovereignty Summits” in April through July
April arrangements for a May 1 talk at Stovall House in Tampa, Florida
Discussions in May about addressing CPAC in September
May 2024 media appearances on the Charlie Kirk Show, Fox Business Larry Kudlow show, Bannon’s War Room, Seb Gorka Show, Newsmax, WABC radio
More discussions about Farage’s attendance at the RNC
Early August discussions about an upcoming trip to the US
That is, Preate retroactively registered as Farage’s agent after a period (July to August) when he was spreading false claims that stoked riots in his own country.
Miller serves as opening act for Trump’s Operation Aurora
Before Trump’s speech in Aurora, CO the other day — at which he spoke of using the Alien and Sedition Act against what he deemed to be migrants — Stephen Miller served as his opening act, using the mug shots of three undocumented immigrants who have committed violent crimes against American women to rile up the crowd, part of a years-long campaign to falsely suggest that migrants are even as corrupt as violent as white supremacists.
Stephen Miller started laying the infrastructure to improve on January 6 from shortly after the failed coup attempt (and he did so, according to the American Sunlight report, with funds that Trump may have raised with his Big Lie). In recent weeks, Trump — with Miller’s help — has undermined the success of towns in Ohio and Colorado with racial division and has led his own supporters hard hit by hurricanes to forgo aid to which they’re entitled with false claims that Democrats are withholding that aid.
By targeting people like North Carolina Governor Roy Cooper and Kamala Harris, Trump is targeting not just Democrats, but also people who play a key role in certifying the election.
If Cooper and Harris were incapacitated before they played their role in certifying the election, they would be replaced by Mark Robinson and whatever president pro tempore a Senate that is expected to have a GOP majority after January 4 chooses, if such a choice could be negotiated in a close Senate in a few days.
And all the while, the richest man in the world, who claims that he, like Steve Bannon and Donald Trump, might face prison if Vice President Harris wins the election, keeps joking about assassination attempts targeting Harris.
We have just over three weeks to try to affect the outcome on November 5 — to try to make it clear that Trump will do for America what he has done in Springfield, Aurora, and Western North Carolina, deliberately made things worse for his own personal benefit. But at the same time, we need to be aware of how those efforts to make things worse are about creating a problem that Trump can demand emergency powers to solve.
https://www.emptywheel.net/wp-content/uploads/2024/10/Screenshot-2024-10-13-at-02.01.49.png1094880emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-13 07:25:292024-10-13 08:03:11Machine for Fascism: The Two Stephens
“He gets played by them, because he thinks that they’re his friends and they are manipulating him full time … with flattery.” Kamala Harris
Here’s how WSJ described the Bob Woodward scoop that Donald Trump sent COVID testing equipment to Vladimir Putin rather than to Americans in need.
Woodward reports that one former intelligence analyst specializing in Russian affairs believed that Trump idolized Putin, making him open to manipulation. During the outbreak of Covid-19 in Russia, Trump secretly sent Putin some Abbott Point of Care Covid test machines for Putin’s personal use.
Putin then asked Trump never to mention it to anyone else, Woodward reports. “I don’t care,” Trump replied. “Fine.”
“No, no,” Putin said. “I don’t want you to tell anybody because people will get mad at you, not me. They don’t care about me.”
In this telling, there’s an intelligence analyst involved, someone who could be Woodward’s source.
It’s not just that Trump secretly sent Putin medical equipment that Americans needed. It’s that, presumably knowing full well the Intelligence Community would learn of that gift, Putin told Trump to keep it secret. “I don’t care,” Trump claimed. But he kept his KGB handler’s secret anyway.
He’s still trying to keep it secret.
You don’t need an intelligence analyst to tell the story of how easy it is for Vladimir Putin to manipulate Donald Trump. After all, HR McMaster documented Trump’s subjugation to Putin at length.
I was the principal voice telling him that Putin was using him and other politicians in both parties in an effort to shake Americans’ confidence in our democratic principles, institutions and processes. Putin was not and would never be Trump’s friend. I felt it was my duty to point this out.
[snip]
Trump wanted to call Putin to congratulate him on being elected to a fourth term as president of Russia. I explained that Putin’s victory had been rigged, thanks to the Kremlin’s control over the media, its quelling of the opposition, the disqualification of popular opposition candidates such as Alexei Navalny, and restrictions on election monitors.
A call was arranged anyway. The day before it, I told Trump I knew he was going to congratulate Putin, but that he should know that “the Kremlin will use the call in three ways: to say that America endorsed his rigged election victory, to deflect growing pressure over the Salisbury nerve agent attack and to perpetuate the narrative that you are somehow compromised.” I then asked Trump the following: “As Russia tries to delegitimize our legitimate elections, why would you help him legitimize his illegitimate election?”
But at this stage in our relationship, my advice on Putin and Russia had become pro forma. I knew that Trump would congratulate Putin and go soft on Salisbury. Trump took the early morning call from the residence. Because I had briefed him the day before, I listened in from my office. As expected, he congratulated Putin up front. After the call, Trump asked me, as he had before, to invite Putin to the White House.
On Face the Nation, McMaster described that he included all this in his book to try to demonstrate to Trump (or at least his hypothetical handlers in a second term) how successfully Putin was manipulating him.
MARGARET BRENNAN: When you got home, you said to your wife, “After [over] a year in this job, I cannot understand Putin’s hold on Trump.” How do you explain that now?
LT. GENERAL H.R. MCMASTER: Well, I explained it in the book. I try to place the president’s belief that he could have a good deal with Vladimir Putin in context of the two previous presidents who thought that they could have a good deal with- with Putin. But also, you know, President Trump, and people know this, he- he likes big splashy deals. He liked- he was pursuing that with Putin. He was pursuing that with Xi Jinping. And of course, Putin is the best liar in the world. And so I struggled, Margaret, should I write about how Putin tried to manipulate President Trump, or not? And I thought, well, Putin knows how he was trying to do it. So maybe in writing about how Putin was trying to press Donald Trump’s buttons, that will make a future President Trump, if he’s elected, less susceptible to those kind of tactics.
There’s been a lot of discussion about whether the intelligence community knows what a simp for Putin Trump is, knows about his ongoing calls with Putin.
The mention of the analyst at least suggests that the IC learned about the COVID testing equipment in real time, which is not surprising given that the equipment would have to be shipped somehow. Importantly, Trump’s KGB handler Vladimir Putin surely knew that it would be discovered. I’m sure the COVID testing kits were nice for Putin to have. The fact that Putin got Trump to prioritize Putin’s health over Americans, the fact that by keeping this secret, Putin ratcheted up the hold he had on Trump were probably far bigger gifts.
And that’s why I think Putin’s instructions to keep this secret are as important as the fact that Trump made efforts to care for Putin’s health as he neglected hundreds of thousands of Americans. It’s the control over all this information that Trump keeps ceding to Putin. As Asha Rangappa noted, Trump just keeps handing Putin ways to control him, willingly.
And now Putin is picking and choosing which of the secrets he has with Donald Trump he’ll make public. Oh sure, he sent me medical equipment at a time when Americans were struggling, Putin is effectively saying. But phone calls?!?! The seven phone calls that are bloody obvious from his claims about speaking to me about my dreams? Nyet! No phone calls, they didn’t happen!!
These tailored denials, hilariously, come from Dmitry Peskov, the guy whose call Trump and Michael Cohen criminally conspired to hide, the likely source for the false claim that appeared in the Steele dossier that the call to the Kremlin Cohen and Trump were hiding was not about real estate in January 2016, but was instead about cheating in an election in October 2016.
That is, I’ve long argued, one of the ways Putin has been wildly successful: not just getting Trump to simper to him like a teenager with a crush, but also to use Trump’s paranoia to heighten conflict in the United States over Trump’s ties to Russia.
Indeed, while Trump would have been preferable for Russia based on policy stances alone, Russia would prefer a weak Trump they could manipulate over a strong Trump any day. By the time of the 2016 operation, Vladimir Putin had already exhibited a willingness to take huge risks to pursue Russian resurgence. Given that audacity, Trump was more useful to Putin not as an equal partner with whom he could negotiate, but as a venal incompetent who could be pushed to dismantle the American security apparatus by playing on his sense of victimhood. Putin likely believed Russia benefitted whether a President Trump voluntarily agreed to Russia’s policy goals or whether Putin took them by immobilizing the US with chaos, and the dossier protected parts of the ongoing Russian operation while making Trump easier to manipulate.
Just as one example, Vladimir Putin knew the FBI was getting recordings of Sergey Kislyak’s calls with Mike Flynn — there’s even a moment when Kislyak’s assistant performs for the wiretap back on December 29, 2016. Putin knew that when he didn’t respond to Obama’s sanctions, the spooks would find those calls, leading to all manner of disruption for the US.
And that created a cascade of ongoing benefits for Putin, as Trump keeps denying Russia Russia Russia that he needed Russia’s help to win, and so keeps doubling and tripling down on his denials, even as he makes his capitulation to Putin readily apparent.
Russia’s 2016 intelligence operation and its aftermath may be the most successful intelligence operation in recent history, because Vladimir Putin has gotten Trump to believe that his KGB handler is hiding the proof he’s got of how weak Trump is, and Trump is desperate, to the core of his being, to pretend that his weakness is not obvious to all.
Update: Going to reup what I wrote just weeks after Helsinki.
Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).
At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.
People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.
Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean.
There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.
More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.
That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.
Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.
And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.
He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.
The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.
9-85.500 Actions that May Have an Impact on an Election
Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See§ 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.
Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.
The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.
First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.
Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?
It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.
The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.
A still more obvious thing missing from the immunity filing is the Proud Boys.
Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.
The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.
[snip]
Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]
But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.
To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.
In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484
But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).
478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).
479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).
480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).
481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).
482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).
483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).
484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).
If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.
Unless you were holding them in reserve.
The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.
In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]
Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.
The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.
[seven lines redacted]
The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]
As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.
They’re both just “persons.”
At least in substitutions used in this filing.
Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.
Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.
October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
January 5: Call with Trump before “All hell is going to break loose.” J6C
Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).
One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.
The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.
Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.
Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.
[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”
So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).
But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.
The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376
That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.
The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.
Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.
But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.
Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.
Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.
These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.
Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.
If we get that far.
https://www.emptywheel.net/wp-content/uploads/2023/08/Mike-Roman-Mug-Shot.jpeg10801080emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-06 10:23:392024-10-06 11:24:36All Hell Is Going to Break Loose: Maybe Jack Smith Did Precisely What Elie Honig Claims He Didn’t
In the last half of Jamal Greene’s book he gives us his explanation of a better way forward, and applies it to several controversial issues, including abortion and discrimination. Greene thinks that courts, especially SCOTUS, spend too much time on their made-up rules about about rights, instead of the rights themselves. He thinks all applicable rights claims have to be considered in rendering decisions and establishing remedies.
The Rodriguez case discussed in the last post is a good example. Kids are going to school with bats, but nothing can be done because of court-created rules designed to limit the reach of the Reconstruction Amendments. I think Greene is right about this.
I think that there are two problems underlying our current judicial approach that prevent Green’s ideas from being effectuated. First, immediately after the enactment of the Reconstruction Amendments SCOTUS limited their reach. The purported reason was preservation of federalism, as we see in The Slaughterhouse Cases. But that doesn’t explain the ferocity with which the Court attacked individual rights and especially Congressional action up to the 1930s, and then after a short respite, returned to the attack beginning in the Reagan era and continuing to the present.
This, I think, reflects a deep skepticism of democracy, whether in claims of individual rights against governments, or in concerted political action through the legislature. It seems SCOTUS has little respect for rights claims of ordinary people regardless of whether the rights arise through legislation or under the Constitution.
The judicial branch has always been a bastion of the privileged elites, who mostly like things the way they are. Powerful commercial interests are heavily over-represented, and have always been. Lewis Powell, the author of Rodriguez, is an example.
The second issue, I think, is the general unwillingness of the judicial system to make rulings requiring other branches to enforce. As an example consider Holmes’ 1902 decision in Giles v. Harris, discussed by Greene. Giles, a Black man, had been registered to vote in Alabama for years. The Alabama Constitution was changed to allow local election registrars to deny registration to people who lacked good character. Giles was not allowed to register under the new system. Ovrall, registration of Black men drooped to nearly zero. There is no doubt that this was a violation of the 15th Amendment. Holmes refused to do anything. One of his reasons was that “…the sheer scale of the conspiracy Giles was alleging exceeded the Court’s power to remedy it.” P. 49.
Courts have always been concerned about their ability to enforce their decrees, and rightly so. But that’s not an excuse for simply refusing to enforce rights. Courts are really good at collecting money. Creative use of this power is a great solution to weakness.
For example, in the Rodriguez case Powell could have given the school district a money judgment large enough to construct a new school, one less friendly to bats, and awarded further monetary damages necessary to bring the school’s textbooks up to date and deal with other issues. He could have imposed costs and attorney’s fees on the school district, and awarded the plaintiffs monetary damages for the injuries they suffered by going to school with bats and ripped up out-of-date textbooks. That would open the door to other under-funded schools in Texas to sue the State and local districts to equalize things. The legislature eventually would have been forced change the funding arrangement.
A third issue, most pornounced in the current panel of SCOTUS, is its effort to justify its decisions by newly created doctrines. The so-called Major Questions Doctrine is an example. This was apparently created for the purpose of thwarting government efforts to remedy serious emergencies pursuant to express legislative action. Another example is the absurd result in US v. Trump, where the loons expressly denied that they were looking at the facts of the actual case: Trump’s efforts to overthrow an election. Instead they insisted they had to make a rule for the ages.
This is preposterous because the right-wingers on the Court don’t have a problem throwing out cases and rules they don’t like.
There are many better ways forward, including Greene’s. But so what? All Republicans including those on SCOTUS are incorrigible. We can’t even get the current crop of geriatric Democrats to hold a hearing on the corruption we all know exists in the judicial system, ranging from the ethics violations of right-wing SCOTUS members to the scandalous judge-shopping of the creepy right wing, to the overtly political decisions of the District and Circuit Court in Fifth Circuit. The fact is that only sustained aggressive demands will ever change anything.
Conclusion To The Conclusion
In this series I’ve discussed three texts: The Evolution Of Agency by Michael Tomasello; Chapter 9 of The Origins of Totalitarianism by Hannah Arendt; and Greene’s thoughtful book.
Tomasello provided a look at the way we humans evolved. I think it hints at how we came to think about rights. He speculates that the earliest ancestors of humans were weaker, slower, more fragile, and had less sensitive eyes, ears and noses than their competitors. They survived by being more cooperative, more attuned to their group, more sensitive to the desires and emotions of individuals in the group. This increased receptiveness to others was the genesis and result of increasing brain size. The larger brain changed the bodies of women to enable birth babies with larger heads. That led to complications of birth. Dealing with those complications required more social cooperation. The longer dependency of the young also increased the demands of cooperation. These changes increased over time and eventually we became human. For a similar view, I recommend Eve by Cat Bohannon, which discusses evolution from the perspective of the female body and mind.
The importance of cooperation in this story leads me to speculate that rights are a way of maintaining individuality among creatures who are tightly bound for the sake of survival.
The Arendt selection says that rights are mutually guaranteed by equal citizens in a society. It also says that rights don’t matter unless there is some way to enforce and protect them. These are her conclusions about the last 200 years, not the earlier millenia.
Greene’s book tells us the story of our national attempt to insure our rights through the legislature and the judiciary, and the sad results.
I think everything we know and essentially all we think and think we know comes from other humans. That includes our rights. Some of us talk about natural rights, some about constitutional rights, some about human rights, some about God-given rights, but all of that comes from other humans and our own interpretations of their thinking. We draw from religions, philosophy, novels, catechisms, preachers, practical experience, our own emotions and sensitivities, laws, each other, our parents and teachers, our colleagues and our children.
But it’s always just us humans, trying to survive as individuals and as members of a group.
So I conclude with a question: how do you discuss questions of rights with people who believe that they possess the absolute unvarying truth?
https://www.emptywheel.net/wp-content/uploads/2018/06/130306205822-the-bill-of-rights-horizontal-large-gallery-e1527968236705.jpg113200Ed Walkerhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngEd Walker2024-10-04 16:46:392024-10-04 16:46:39Conclusion To Series On Rights
If this thing were ever to go to trial, such a document would focus more on the elements of the offense that Judge Chutkan would have jurors assess, which I laid out here. While there’s extensive discussion of the Electoral Count Act, particularly regarding the intentional exclusion of the President from it, there’s less discussion of how Trump’s lies impaired its function, the crime charged under 18 USC 371. While there’s a discussion of the intent behind the fake electors plot, there’s less discussion of how those fake certificates served to impair the function of counting the real certificates (a point Trump made in his post-Fischer supplement to his motion to dismiss the indictment on statutory grounds), something that would be key to proving the two 18 USC 1512 charges. There’s little discussion of the victims — 81 million Joe Biden voters — whose rights Donald Trump allegedly attempted to violate in the 18 USC 241 charge.
Jack Smith is not exactly telling us how he’d prove his case. Rather, he’s asking for permission to use certain kinds of evidence to do so.
There’s no telling how SCOTUS will respond to this (I’m particularly interested in the tactical decision to call the Brooks Brothers Riot, “a violent effort to stop the vote count in Florida after the 2000 presidential election,” in a filing that aims to persuade John Roberts, Brett Kavanaugh, and Amy Coney Barrett.) Prosecutors have raised the cost for Roberts et al, by laying out that their immunity argument basically argues that it is the job of the President of the United States to send mean Tweets eliciting violent threats against members of his own party.
Now that Trump got permission to submit a sur-reply, his team is likely to frame this entire argument anew, as they wanted to do from the start. Given what they’ve said, I would assume their 180-page brief will focus extensively on the chilling effect it would have to hold a former President accountable for almost getting his Vice President killed. Once they prove that, Trump’s lawyers have argued, the entire indictment must be scrapped, because grand jurors were exposed to immunized behavior.
On that point: It seems that the brief relies on immunized conduct that was not shared with the grand jury. This appears most obvious in the footnote where the government says that part of a conversation Mike Pence had with Trump on December 19 is official conduct, but they don’t plan to share it with jurors. A more interesting instance, however, is the reliance on Pat Cipollone’s testimony that, after he showed up to the January 4 meeting at which John Eastman attempted to persuade Pence to throw out legal votes, Trump “explicitly excluded him from” the meeting. Under SCOTUS’ guidelines, that conversation presumably shouldn’t have been presented to grand jurors, but it is powerful evidence that the January 4 meeting was not official business.
The most notable new evidence in the filing is another example. Minutes after Trump sent the Tweet targeting Pence during the riot, the brief describes, Person 15 (Nick Luna), rushed into Trump’s dining room to tell him that Pence had been taken to safety, only for Trump to respond, “So what?” Prosecutors are only using that evidence, they explain, to contextualize the Tweet Trump had just sent, to make it clear it was a private Tweet. “The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet.” Luna probably alerted Trump imagining he might take official action to protect his Vice President, so this would be an official act. Jurors will never hear that testimony, but we get to, as do John Roberts and his colleagues.
Mike Pence
Caveating that I expect Trump to throw the kitchen sink at the Pence issue, I think Smith does fairly well rebutting the presumption of immunity in Trump’s communications with Pence. That analysis relies heavily on the deliberate exclusion of the President from tallying the vote, supporting a conclusion that “it is difficult to imagine an occasion when a President would have any valid reason to try to influence” the certification of the vote (meaning relying on Trump’s discussions with Pence wouldn’t chill valid Presidential communications). It also relies heavily on Blassingame’s holding — one not explicitly adopted in SCOTUS’ immunity ruling — that a candidate for re-election is not entitled to presidential immunity. So, the filing argues, any discussions that Trump and Pence had about their re-election bid (the filing lists nine here) are not official.
[T]he Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period.
[snip]
Pence “tried to encourage” the defendant “as a friend,” when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration°°’—the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities.
Another thing prosecutors did is engage in a system of parallel citation, often citing what must be interview or grand jury transcripts along with passages from Pence’s book.
The brief doesn’t ever mention footnote 3, in which Chief Justice John Roberts, in an attempt to dismiss Justice Barrett’s concerns that excluding officially immune evidence would make it impossible to prosecute the bribery specifically mentioned in the Constitution, said that of course prosecutors could rely on “the public record.” (See Anna Bowers’ good piece on the footnote here.)
3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)
For much of the Pence testimony on which prosecutors want to rely, that parallel system of citation makes clear, there is a public record, and was — even excerpted in the WSJ — months before prosecutors interviewed Pence. Again, prosecutors aren’t making the argument that that should change the calculus. But ultimately, this is an instance where one key victim of Trump’s alleged crimes went public even before prosecutors asked for his testimony.
I actually think where Jack Smith’s bid may fail is with three others: Eric Herschmann (Person 9), Dan Scavino (Person 45), and Stephen Miller (who — best as I can tell — is not mentioned).
Eric Herschmann
If possible, Smith’s prosecutors rely even more heavily on Eric Herschmann’s testimony than the January 6 Committee did. The immunity brief uses his testimony to prove that Trump knew his claims of election fraud were false. It uses Herschmann’s prediction that Trump would never have to pay Rudy for his election interference because Rudy would never be able to prove his claims. It relies on Herschmann’s testimony (and that of another White House staffer) to describe how Trump mocked Sidney Powell even while relying on her false claims. It relies on Herschmann’s testimony about Trump possibly signing a false declaration in a Georgia lawsuit. And it relies on Herschmann to introduce the evidence presented by paid vendors that there was no evidence of substantive election fraud.
The filing includes two long sections (one, two) explaining why Herschmann’s testimony shouldn’t be considered official actions. Herschmann’s relationship with Trump was familial, arising from his childhood friendship with Jared. His portfolio at the White House was undefined. Prosecutors get around the possibility that Herschmann’s testimony might be official by describing his role as a “conduit for information from the Campaign,” providing “near-daily” updates on the campaign. If this argument fails, then a great deal of prosecutors’ best evidence would disappear.
Dan Scavino
Dan Scavino’s testimony is just as critical. Prosecutors want to use Scavino to introduce Trump’s Twitter addiction and to validate that some Tweets — including the one targeting Pence — were sent by Trump.
P45 served as Assistant to the President and White House Deputy Chief of Staff.694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos.695 The Government will elicit from P45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that P45 did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.696 He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was “very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news,” and “knew how to read the replies and see all the replies of what people were saying and doing which . . . led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to P45 having do it. None of this proposed testimony on P45’s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as P45’s testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.
They also want to use Scavino, along with Herschmann and Nick Luna, to testify that Trump was sitting alone in his dining room obsessing about Fox News coverage on January 6.
The filing treats actions by the White House Deputy Chief of Staff as unofficial, in part, by noting that Scavino “volunteered” for the campaign while working as Deputy Chief of Staff and that “he did not differentiate between his official and his Campaign duties and when he would send Tweets on the account for Campaign purposes.” Like Herschmann, Scavino got White House Counsel advice about how to play both a White House and a campaign role. The filing tries to finagle this by distinguishing between Trump’s @POTUS and his @RealDonaldTrump Twitter accounts.
But ultimately, Scavino would be one of the most hostile witnesses at trial, or in any kind of evidentiary hearing (along with Jason Miller). Prosecutors are resting a whole bunch on what even they admit is a vague border between campaign and official Tweeting.
Stephen Miller
Then there’s Stephen Miller, Trump’s Discount Goebbels.
As far as I know, Miller is not mentioned in this brief at all.
That poses a bit of a potential weak point in prosecutors’ effort to rely on Trump’s January 6 speech treated as a campaign speech (which they otherwise do by matching it to a clear campaign speech given in Georgia two days earlier, focusing on who paid for the rally, noting that Secret Service did not consider it an official event, and observing that Trump walked in and out to Lee Greenwood and YMCA rather than Hail to the Chief).
That’s because — as the January 6 Committee Report describes — Miller was intimately involved in adding attacks on Pence back into the speech after the Vice President refused Trump’s demands a final time.
Instead, between 9:52 a.m. and 10:18 a.m., the President spoke with hisspeechwriter, Stephen Miller, about the words he would deliver at the SaveAmerica Rally just hours later.30 The former President’s speech had come together over the course of 36 hours, going from a screed aimed at encouraging congressional objections to one that would ultimately incite mob violence.31
Only four minutes after the call concluded, at 10:22 a.m., Miller emailedrevisions to the speechwriters, instructing them to “[s]tart inputting thesechanges asap” that included “red highlights marking POTUS edits.”32 ThePresident had made some cosmetic additions, like peppering in the word“corrupt” throughout,33 but there was one substantive edit—a new target—that would focus the crowd’s anger on one man.
None of the preceding drafts mentioned Vice President Pence whatsoever. But now, at the very last minute, President Trump slipped in the following sentences calling the Vice President out by name:
Today, we will see whether Republicans stand strong for the integrity of our elections. And we will see whether Mike Pence enters history as a truly great and courageous leader. All he has to do is refer the illegally-submitted electoral votes back to the states that were given false and fraudulent information where they want to recertify. With only 3 of the 7 states in question we win and become President and have the power of the veto.34
[snip]
As recounted in Chapter 5, President Trump called Vice President Penceat 11:17 a.m.39 The call between the two men—during which the President soon grew “frustrat[ed] or heated,”40 visibly upset,41 and “angry”42—lasted nearly 20 minutes.43 And President Trump insulted Vice President Pence when he refused to obstruct or delay the joint session.
After that call, General Keith Kellogg said that the people in the roomimmediately went back to editing the Ellipse speech.44 At 11:30 a.m., Miller emailed his assistant, Robert Gabriel, with no text in the body but the subject line: “insert—stand by for phone call.”45 At 11:33 a.m., Gabriel emailed the speechwriting team: “REINSERT THE MIKE PENCE LINES. Confirmreceipt.”46 One minute later, speechwriter Ross Worthington confirmed that he had reached Vincent Haley by phone.47 Haley corroborated that he added one “tough sentence about the Vice President” while he was at the teleprompter.48
The final written draft had the following Pence reference: “And we will see whether Mike Pence enters history as a truly great and courageous leader.”49 Haley wasn’t confident that line was what he reinserted, but email traffic and teleprompter drafts produced by the National Archives andRecords Administration (NARA) indicate that he was mistaken.50
At 11:15 am., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session.410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed.411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification.412
Admittedly, in the section that specifically argues for the speech’s treatment as a campaign speech, the filing describes that most staffers were using their personal emails to edit the speech (the brief uses this distinction elsewhere, including to admit communications from Mark Meadows). But not the final revisions.
Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email.585 And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech.586
This may not doom prosecutors’ efforts to admit the speech. There are so many other reasons why it is clearly a campaign speech (though of course, SCOTUS has not adopted Blassingame, so they may not even find that dispositive).
But Stephen Miller is right there in the middle of the speech revisions, ready to claim he did so as an official White House employee.
Mind you, if Trump tried to make that argument, prosecutors might revert to the same thing they did to rely on the Tweet Peter Navarro sent, lying about vote fraud, which Trump then used to pitch January 6. Navarro was a Hatch Act recidivist — Trump’s entire White House was — so you can’t use the fact that Navarro had a White House job to rule that his Tweet was an official act.
In tum, that Tweet linked to a document drafted by P69. P69 that had nothing to do with P69’s official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election.633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.
Now’s a good time to reveal that Navarro got a second extension on his deadline to file for cert at SCOTUS, partly because Magistrate Michael Harvey has not yet finished reviewing the emails he sent via ProtonMail for Presidential Records is not yet done. Or, to put it differently, Jack Smith likely still doesn’t have all the emails via which Navarro participated in this coup attempt.
If SCOTUS had any shame, this nitty gritty — the notion that Trump’s mean Tweets against fellow Republicans might be protected under a claim of presidential immunity — would soon become embarrassing.
But then I remember that the three Justices who would be most amenable to such an argument might well grow defensive after being reminded that they were present at the start of all this, the effort to shut down vote counts via lawfare accompanied by the threat of violence.
Update: Note that the December 14 podcast cited in the immunity brief laid out in this post was an interview about the fake elector plot with Stephen Miller. It’s another area where Miller is in the thick of things.
https://www.emptywheel.net/wp-content/uploads/2024/10/Screenshot-2024-10-04-at-12.56.38 PM.png3861324emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-04 10:37:562024-10-05 09:36:28How Jack Smith Wants to Prove Trump’s Crimes
I want to take a step back and put the immunity briefing released yesterday in context.
On July 1, after SCOTUS released its immunity opinion on the last possible day, it remanded the case back to Judge Tanya Chutkan to assess what was immune under the newly rewritten Constitution.
As soon as she got the case back, Judge Chutkan ordered a status report for August 9 and a status hearing for August 16. But then on August 8, Jack Smith said, sorry, can we have more time? I correctly predicted then that Smith was superseding the indictment, which Smith did do on August 27 (for reasons I won’t yet explain, this filing makes me think we may see more charges after the election).
In a September 5 status hearing, prosecutors successfully persuaded Judge Chutkan to let them deal with the remand by first submitting a brief explaining how the new indictment complies with SCOTUS’ rewritten Constitution. During the hearing, Chutkan reiterated something she has said from the start: she’s not going to let the election stall this prosecution.
I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here.
This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.
Trump’s team ignored that warning, wailing about the election in a filing that was supposed to be about discovery. They wailed again in response to Jack Smith’s request to file a 180-page brief. In her order granting Smith’s request, Chutkan again swatted back at Trump’s election wails.
In response, defense counsel reframed the problem as an “election dispute,” insisting that “it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history.” Id. at 28–29. But Defendant’s concern with the political consequences of these proceedings does not bear on the pretrial schedule; “what needs to happen before or shouldn’t happen before the election is not relevant here.” Id. at 29.
When the prosecutors asked to file its brief in redacted form (which they had warned it would do, and which they noted complied with the protective order in the case), Judge Chutkan gave Trump a deadline of noon on Tuesday — a clear sign she didn’t want to dawdle over redaction fights. Nevertheless, in their reply, Trump’s lawyers accused Smith of “improper political considerations” again, rather than disputing any particular redaction. By choosing to offer no more than generalized complaints for more redactions (redactions that might have hidden, just as one example, how many times current Trump campaign advisor Jason Miller told Trump he had lost, lost, lost the election in 2020), Trump’s team sunk their chance to delay the redactions. I thought it might be quick, but didn’t expect it to come as soon as last night.
In her opinion ordering the motion to be unsealed, Judge Chutkan expressed increasing impatience with Trump’s claims of politicization. Trump already got his shot at a vindictive prosecution claim, Chutkan noted, which she rejected as soon as she got the case back in August.
In addition to the assertions discussed above, Defendant’s opposition brief repeatedly accuses the Government of bad-faith partisan bias. See Def.’s Opp’n at 2, 5–6. These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. See Oversized Brief Order at 2–3 (identifying two recent instances of this pattern). Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case. Defendant has had an opportunity to make his case that his prosecution is improperly motivated. See Def.’s Mot. to Dismiss for Selective and Vindictive Prosecution, ECF No. 116. Future filings should be directed to the issues before the court.
Best as I can tell, Chutkan issued her order around 3:30PM ET yesterday, and the Smith filing posted around 3:35PM.
At 8PM — so well after they should have read Chutkan’s order — Trump’s team requested permission to file for excess pages as well, the same 180-pages that Smith got. They also asked to get a sur-reply, the kind of request that you normally make after someone raises a new issue in a reply, albeit one she effectively invited at the status hearing last month.
But they also asked for an extension for their response until after the election, until November 21. Not only do they offer almost no excuse for the delay, aside from existing deadlines, one of which is for today and the other of which is for an attack on the Special Counsel appointment that conflicts with DC Circuit precedents. But they misrepresent the timing that has already occurred, suggesting that the time DOJ took to consult with others at DOJ and supersede the indictment was rather time they took to write the immunity brief.
[T]he Court granted the Special Counsel’s request for an additional three weeks to complete its drafting, setting a September 26, 2024, deadline.
[snip]
This resembles the 3-week extension the Court previously provided the Special Counsel, Aug. 9, 2024, Minute Order, which allowed the Special Counsel to work on its initial brief before the September status conference. In total, the requested extension would provide President Trump 8 weeks to file his Response, which approximates the 6 weeks the Court granted the Special Counsel (including a 3-week extension before the status conference, and an additional 3 weeks thereafter to finalize its brief and exhibits).
Trump’s lawyers offer no justification for the extension, at all, that arises from their own time constraints (for example, the Jewish high holy days, which have a habit of messing with many a criminal docket, or their other caseload). They simply want more time because, they falsely claim, Jack Smith got more time.
Jack Smith wrote a 180-page filing in three weeks.
And Judge Chutkan already knows that Trump’s team can work quickly. At the status hearing on September 5, when John Lauro similarly tried to stall, Thomas Windom pointed out that in July, Trump’s attorneys wrote a 52-page attack on the New York State hush payment case in nine days.
I want to point out just as a data point for your Honor, on July 10th of this year, the Defendant, in his New York State criminal case, the Defendant and two of the attorneys sitting at this table filed a 52-page motion to vacate his state criminal conviction on the grounds of a Supreme Court opinion that came out nine days before. Fifty-two pages covering an entire trial record in nine days.
The defense can move comprehensively, quickly and well. So can we. And the Court should consider that in setting its schedule. The final piece, your Honor —
THE COURT: Congratulations, Mr. Blanche.
That’s in the court record now: At a pace of 52 pages in nine days, Trump’s team should be able to file their 180 pages in a month.
But a month is longer than their current deadline, which is three weeks. So I wouldn’t be surprised if Chutkan did give them some relief. Even if she gives them one week, it’d bump right up against election day, which is transparently the point.
It is likely that Trump will not have to explain himself until after voters have already weighed in.
Back on August 31, I noted that Trump really didn’t want to have to justify almost getting Mike Pence killed on January 6.
In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”
This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.
That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.
[snip]
There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.
Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.
But there must be more than that. After all, the allegation is out there, along with the new revelation that after Trump sent the tweet targeting Pence at 2:24PM, someone (probably Nick Luna) rushed into Trump’s dining room and told him Pence had been moved to a secure location. “So what?” Trump said as his Vice President was hearing chants of “hang Mike Pence” from Trump’s rioters.
Trump wants to boot this past not just the election, but also the aftermath.
Perhaps Trump just wants to leave open the possibility of never responding. If he wins, Judge Chutkan would have very few tools to enforce her deadlines, even in the two months before Trump was inaugurated.
Or perhaps Trump doesn’t want to address a coup strategy that he plans to reuse?
Update: I mean, how familiar does all this feel, citing how Trump laid the groundwork for his coup attempt?
In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends.”5
On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6
In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.”7
At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8
In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”9
On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.”10 The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3.
Update: As I suspected she might, Judge Chutkan gave Trump more time — just enough to get beyond the election. But not all the time he requested.
MINUTE ORDER as to DONALD J. TRUMP: Defendant’s [253] “Motion to Extend Page Limits and Time to Respond to Government’s Motion for Immunity Determinations and for Leave to File a Sur-Reply” is hereby GRANTED in part and DENIED in part. The court’s [233] Order is MODIFIED as follows: Defendant’s combined Response and Renewed Motion to Dismiss Based on Presidential Immunity is due November 7, 2024 and may include up to 180 pages; the Government’s combined Reply and Opposition is due November 21, 2024; and Defendant may file a combined Reply and Sur-Reply by December 5, 2024. Signed by Judge Tanya S. Chutkan on 10/3/2024. (zcll)
https://www.emptywheel.net/wp-content/uploads/2023/04/Screenshot-2023-04-28-at-09.24.08.png11882124emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-03 10:41:122024-10-03 17:29:38The Immunity Brief: How We Got Here, Where We’re Going
One of the most surprising details in the book by former Mueller prosecutors, including Aaron Zebley, is that they added a contentious half paragraph the morning they finished the report.
For volume I, we discussed one last time whether the report was sufficiently clear about “coordination” with Russia. One of the sticking points: on July 27, 2016, Trump had made his “Russia, if you’re listening” speech urging Russia to find Clinton’s “missing” emails. Five hours later, the Russian GRU launched attacks into the Clinton team’s personal email accounts. This appeared to be Russia’s response to Trump’s speech.
Bob had tied our work to established criminal standards. We did not view this “call and response”—Trump’s publicly asking for an action and then Russia taking one—as sufficient for a criminal agreement or conspiracy. But without more explanation, we were concerned a reader might not understand why these July 27 events did not constitute “coordination.” That morning, we added a paragraph to the introduction to volume I to make our reasoning clearer (emphasis added):
“Coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interest. We applied the term coordination in that sense when stating that the investigation did not establish that Trump campaign coordinated with the Russian government in its election-interference activities.
There’s more to this paragraph: it starts by explaining why prosecutors didn’t assess Trump’s actions in terms of “collusion,” another term that’s not a crime. Unlike “collusion,” though, “coordination” was included in Rod Rosenstein’s appointment order. As a prosecution and declination report, Mueller had to (and did) assess conduct in terms of law, not buzzwords or Rosenstein’s ill-considered measures.
Rather than providing clarity, this paragraph made things worse, because those who had spent years talking about “collusion,” incorrectly claimed the report had addressed it. No collusion!!! All the headlines blared. No collusion!!! Bill Barr keeps claiming.
In fact, as the book describes it, prosecutors added the coordination language, at least, not to expand the scope of the report (to include terms people used to describe it), but to address how they approached what the book calls “call-and-response:” when Russia and Trump’s campaign worked in concert without formally agreeing to do so.
Of late, I’ve come to understand this “call-and-response” structure as Russia’s effort to lock Trump in, ensuring a benefit to itself, in his compromise and America’s polarization, whether or not he took the actions Russia would prefer.
There’s a sad irony here. Prosecutors thought that the “are you listening” comment was so outrageous, they needed to explain why it was nevertheless not a crime, because of course must appear outrageous to everyone else.
But in reality, it didn’t appear to their bosses at all. Both Rod Rosenstein and Bill Barr, for example, repeatedly excised a key part of Mueller’s findings: that Russia was seeking to help Trump and Trump was happy to accept the help from a hostile foreign country.
Rod Rosenstein did so when announcing the Internet Research Agency troll indictment; Rosenstein even ad-libbed a claim that the indictment did not allege the information operation changed the outcome of the election.
One thing we noticed about Rosenstein’s remarks was that he never stated that the defendants’ actions were designed to help Trump and disparage Clinton, even though that was one of the core allegations of the indictment. And at the end of his remarks, he added something that wasn’t in the indictment: “There is no allegation,” he said, “that the charged conduct altered the outcome of the 2016 election.”
Bill Barr didn’t say Russia was trying to help Trump when he informed Congress of his spin of the results.
It omitted or misstated our analysis. In its discussion of volume I, the letter accurately stated our core charging decisions, but left out any reference to the intent of the Russian social media campaign to aid Trump in his bid for the White House, nor did it describe that same objective driving the hack-and-dump operation run by Russian military intelligence. There was no mention of the contacts between members of the Trump campaign and Russian officials and proxies. The letter also left out a core conclusion of volume I: that the “Russian government perceived it would benefit from a Trump presidency and worked to secure the outcome, and that the [Trump] Campaign expected it would benefit electorally from information stolen and released through [Russian military] efforts.
And Barr did it again — refused to say Russia was trying to help Trump — when he gave a press conference with the release of the Report.
[A]s he had in his March 24 letter, he omitted any mention of Russian support for Trump’s election bid. He then described the Russian military intelligence operation to steal and dump Clinton campaign emails, but again omitted the Russian government’s purpose of harming Clinton’s election bid in order to aid Trump. Barr also did not mention our finding that the Trump campaign expected it would benefit electorally from information stolen and released through Russian military intelligence efforts.
He then described the Russian military intelligence operation to steal and dump Clinton campaign emails, but again omitted the Russian government’s purpose of harming Clinton’s election bid in order to aid Trump. Barr also did not mention our finding that the Trump campaign expected it would benefit electorally from information stolen and released through Russian military intelligence efforts.
To be sure, the prosecutors’ larger gripe was always how Barr dealt with volume II. Mueller’s team had decided they would not to make a prosecutorial decision, but Barr spun it as a choice that they could not make such a decision. (My instincts that they deliberately left this for Congress are confirmed by the book.)
But the book tracks how the people overseeing the investigation refused to admit something central to it: Russia wanted to help Trump, and Trump invited that help.
“If it’s what you say I love it especially later in the summer.”
It’s an important observation given what came next. The entire Durham investigation was premised on ignoring Trump’s request for help. Two years later, for example, Barr insisted that the Russian investigation started from the Steele dossier (and astonishingly, Barr dismissed the possibility that Russia would want something in exchange for electing Trump).
Bill Barr and John Durham deliberately kept themselves ignorant of all that. Three years later, Barr continued to insist the investigation arose from the Steele dossier (and, insanely, said that since Russia didn’t need help doing a hack-and-leak, there was no reason to investigate Trump). Durham repeatedly tried to prevent those he charged from describing how Trump’s public comments (and their likely knowledge that another hacking attempted followed the comments) drove their concerns about Trump’s ties to Russia, even though as Marc Elias described, that was the reason they all started to focus on Russia.
Even at the end of his four year investigation, Durham claimed to have no idea that in response to Trump’s comments, Russia attempted to hack a new target.
Of course, Barr and Durham had to ignore Trump’s solicitation of a hack. If they hadn’t, they would never have had an excuse to launch the Durham probe, to pretend that investigating why Trump’s campaign got advance warning of the operation and then goaded it on made total sense. Barr and Durham had to pretend that none of this posed a risk to the country.
For a report for Bill Barr, Mueller added language trying to explain why they didn’t treat Trump’s successful solicitation of an attempted hack against his opponent as a crime.
But Barr, both before, in real time, and for years after, never even considered that a problem. Or couldn’t, because if he did, he couldn’t criminalize Hillary Clinton’s victimization at the hand of Russia.
https://www.emptywheel.net/wp-content/uploads/2020/07/Screen-Shot-2020-07-28-at-4.35.21-PM.png11782014emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-10-01 13:30:312024-10-01 13:30:31Bill Barr Didn’t Hear When Trump Asked, “Russia Are You Listening?”
none
