Since Leaving Butler, Trump Has Foregone the Best Medical Care and Is Withholding CT Scan Results

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Fresh off his stunt calls for Joe Biden to be drug tested during the debate, Ronny Jackson — the lapsed doctor who turned the White House into a pill mill and covered up Trump’s near-lethal COVID — has made a show of releasing a medical update on Trump’s wound and treatment from the shooting attempt.

This purported medical update is not the first we’ve heard from Jackson about Donald Trump’s ear. Jackson did several media interviews before this, starting with propagandist Maria Bartiromo, a chat which focused far less on a quasi medical description. On July 16, in an interview with far right podcaster Benny, Jackson claimed the bullet didn’t get close enough to Trump’s head to cause any concussive effect. Sometime in the same period, right wing columnist Byron York spoke to Jackson more informally.  Placing himself among that crowd, Jonathan Swan wrote a fawning story from Jackson’s view — confirming that Jackson offered to help Trump “medically or with the press” — mentioning none of the reasons that Jackson’s claims should be approached with skepticism.

So we should assume this “medical report” is about helping Trump with the press as much as it is changing his bandages.

The letter is an excellent test of how well various journalists evaluate credibility of sources — a good proxy for how they treat anonymous sources. You can watch, in real time, whether journalists consider the following before treating a discredited hack like Jackson as a credible source:

  • Is he in a position to know what he claims?
  • Is the report internally consistent
  • Is he otherwise reliable?

For example, according to Jackson’s narrative (and Swan’s report), Jackson was not a witness to the most important detail of the report: what the doctors in Butler, PA determined.

The President was initially treated by the medical staff at Butler Memorial Hospital in Butler, Pennsylvania, who did an excellent job of evaluating him and treating his wound. I want to thank them for their outstanding care. They provided a thorough evaluation for additional injuries that included a CT of his head.

Jackson doesn’t know firsthand what their care was like. And Jackson’s reference to possible medical reports, with no substance, should raise questions about why we haven’t heard about the CT results (and why Jackson didn’t mention the CT test when Benny, who remarkably asked a better question than many self-imagined straight journalists, asked him about a concussion).

Crazier still, Jackson sources his knowledge about the bullet trajectory to what was, “reported and witnessed by the entire world, he sustained a gunshot wound to the right ear from a high- powered rifle used by the would be assassin.” Jackson’s description of the wound may well be accurate.

The bullet passed, coming less than a quarter of an inch from entering his head, and struck the top of his right ear. The bullet track produced a 2 cm wide wound that extended down to the cartilaginous surface of the ear. There was initially significant bleeding, followed by marked swelling of the entire upper ear. The swelling has since resolved, and the wound is beginning to granulate and heal properly. Based on the highly vascular nature of the ear, there is still intermittent bleeding requiring a dressing to be in place. Given the broad and blunt nature of the wound itself, no sutures were required.

But even there, Jackson’s description of the amount of bleeding is second hand (and inconsistent with what videos showed). Swan even described that Jackson had fallen behind his spouse, watching in the next room, as he followed Trump’s speech live. He watched the shooting itself on delay.

Mr. Jackson was in his bedroom in Amarillo, Texas, on Saturday night, packing his bag for the Republican convention. He was watching the Trump rally on his iPad, but he had stopped the livestream a couple of times, so he lagged behind Mr. Trump’s remarks by a couple of minutes. His wife, Jane, was watching the rally on a television in the living room, and she was speaking to someone on the phone. She suddenly called out to him.

“She said, ‘The president just got shot,’” Mr. Jackson recalled.

“And I said, ‘What? No.’”

“She goes, ‘Are you behind?’ And I was like, ‘Oh, my God.’ And so I fast-forwarded it.”

Having gone an entire week exhibiting little curiosity about Trump’s medical condition, many outlets snapped this up as if it was credible.

WaPo’s Maegan Vazquez offers one of the better mainstream treatments of this. She raises Jackson’s partisan bias, describing Jackson as, “a political ally whose actions as a medical provider have come into question over the years,” in the second paragraph and returns to concerns about Jackson in later paragraphs.

He will have further evaluations, including a comprehensive hearing exam, as needed. He will follow up with his primary care physician, as directed by the doctors that initially evaluated him.

Axios’ Emma Loop, by contrast, basically just cut-and-pasted the one substantive paragraph. The only warning about Jackon’s unreliability was a link to a report on Jackson’s alcohol and personnel abuse, labeled as Axios’ “Go Deeper” category.

That made Loop’s report nearly indistinguishable from the one from an intern that Politico tasked with cutting and pasting the release.

WSJ simply stuck a quote from Jackson at the end of a report on Trump’s Grand Rapids rally, perhaps appropriately sandwiched between the ravings from other Trump groupies. It offered no caution about Jackson’s credibility.

NYT hasn’t covered yesterday’s release at all, perhaps figuring that Swan’s earlier fawning coverage was sufficient.

Perhaps the most important problem with Jackson’s report came from former Pentagon correspondent Barbara Starr.

As former President, Trump has available to him the best doctors in the world to evaluate a gunshot wound (and any possible damage to his brain).

According to Jackson, Trump hasn’t even consulted his primary care physician yet, nor has he had his hearing tested.

He will have further evaluations, including a comprehensive hearing exam, as needed. He will follow up with his primary care physician, as directed by the doctors that initially evaluated him.

Rather than having his physician care for this wound, then, Trump had his trusty PR flack do so.

But maybe Trump didn’t need a practicing doctor to care for him. Maybe the wound was so minor Trump needs no day-to-day medical care, he needs only a nurse to change his bandaid.

This certainly looked like a medical report. But what it reported is we still don’t know about results on the tests done in Butler, including the CT scan. And rather than conveying that, Trump has chosen to put his Candy Man on the case.

Update: This Alex Wagner interview with Vin Gupta discusses the kinds of concerns that doctors might have going forward.

Update: And here’s Sanjay Gupta with his questions.

Manufactured Horseshit: Paul Manafort Returns to the Scene of the Crime

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Vaughn Hillyard caught Paul Manafort in a victory lap on the floor of the RNC the other day.

Hillyard: Mr. Manafort, how is it to be back?

Manafort It’s great to be back.

And so it is that eight years after getting advance warning of the DNC release from his long time buddy Roger Stone, almost eight years after Stone emailed Manafort telling him he had a way to win the race, and just short of eight years after Manafort met with Konstantin Kilimnik in a cigar bar and discussed the outlines of a quid pro quo: campaign information for debt relief in exchange for a commitment to carve up Ukraine (Manafort insists he rejected the plan to carve up Ukraine, though the plan nevertheless remained active until at least 2018).

Aside from Hillyard and Robert Costa’s tweets marking Manafort’s arrival, his presence made barely a blip in the news coverage.

Why should it?

Among all the other criminals and insurrectionists, Manafort no longer sticks out.

And with JD Vance’s selection as VP, Manafort’s support for a pro-Russian Ukraine also looks banal, rather than alarming.

But there is likely a backstory few want to pursue.

Back in May, when Paul Manafort’s return was first reported and then denied, 24sight described how (as he had done in 2016), Paulie had been and kept working the back channel.

Manafort has quietly been passing strategic advice back to Trump through co-campaign manager Chris LaCivita and longtime Trump pollster Tony Fabrizio, the Republican sources said. Manafort has been analyzing polling results and advised on the organization of state Republican parties and selecting delegates to the Republican nominating convention — one of his specialties — according to two Republicans familiar with the dealings.

But LaCivita and other Trump campaign officials vehemently denied Manafort’s involvement.

LaCivita called questions about huddling with Manafort for Trump’s benefit “manufactured horseshit,” in a text message to 24sight News. Trump campaign spokesman Brian Hughes endorsed LaCivita’s reply, adding some context to the pushback.

“There was clearly a moment of consideration about using Manafort specifically for the convention,” Hughes said Wednesday. “But Manafort very publicly withdrew himself.”

Asked if Manafort had discussions with Fabrizio about helping steer the campaign, Hughes said he was unaware of everything that people talk about outside the campaign.

Three Republicans familiar with the dealings said that LaCivita met with Manafort in suburban Washington last fall. LaCivita denied details of the meeting to 24sight News, but declined to answer additional questions.

LaCivita was denying Manafort’s centrality as vigorously as he is now attempting to deny the (Orbán-aligned) Project 2025, as vigorously as Steve Bannon denied Manafort’s ongoing role in 2016, in spite of receiving plans on how to secure the victory, plans which led Bannon to worry about the appearance of Russian involvement in the victory.

But all these pieces go together.

That is, Trump is running not just as someone who explicitly wants to be a Dictator from Day One, someone who supports all the same policies as a Project that targets divorce and birth control along with the very idea of civil service.

He is running with Russian help on a plan to give Russia what it wants, starting, but not ending, with Ukraine on a silver platter.

Trump, and the guy Trump pardoned for lying about what happened with Russia in 2016, are simply picking up where things left off.

Will Alex Jones Accuse Donald Trump of Being a Crisis Actor?

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“The gun culture’s winning, and if we beat ’em on that, we can beat ’em on everything,” Alex Jones said about halfway through a rant about the Sandy Hook massacre.

“You know they’re going to exploit this tragedy,” he said, before getting rich off of it.

The rant was played at the Texas trial which led to a billion dollar judgment for the conspiracy theorist’s claims that the act of school shooter Adam Lanza was staged.

Of course, as Jones subsequently conceded, disturbed loner Lanza really did shoot up an elementary school. He really did kill a bunch of children.

In America, one doesn’t need to invent Deep State plots for loners to commit seemingly pointless shootings. Sometimes all it takes is an assault rifle.

And it looks increasingly likely that’s what Thomas Crooks was: someone who wanted to shoot people, not to achieve some political murder or to help Iran avenge Qassem Soleimani’s death, but because that’s how America gives some people’s lives purpose.

According to briefings given to Congress, Crooks seemed to be casing out both Trump and Joe Biden in advance of his attack.

F.B.I. officials told members of Congress on Wednesday that the gunman who tried to kill former President Donald J. Trump used his cellphone and other devices to search for images of Mr. Trump and President Biden, along with an array of public figures.

The 20-year-old gunman, Thomas Matthew Crooks of Bethel Park, Pa., also looked up dates of Mr. Trump’s appearances and the Democratic National Convention, according to people on two conference calls held to answer lawmakers’ questions.

[snip]

F.B.I. officials, speaking on the calls, suggested that his search history indicated he was broadly interested in powerful and famous people, without any obvious ideological or partisan pattern.

Among the other prominent figures the gunman searched for using one of his phones, besides Mr. Trump and Mr. Biden, were the F.B.I. director, Christopher A. Wray; Attorney General Merrick B. Garland; and a member of the British royal family, according to two officials with knowledge of the situation, speaking on the condition of anonymity to discuss the matter publicly.

Mr. Wray, who was also on the calls, went out of his way to caution that the investigation was still in its early stages.

But the absence of “any political or ideological information” at the house Mr. Crooks shared with his mother and father was “notable” because most people who carry out acts of political violence tend to leave a discernible trail of political views, a top bureau official told lawmakers.

[Note: this story also repeats a claim that Crooks forewarned of something on Steam; that appears to be one of numerous instances of people adopting his identity after the fact.]

While accounts vary, some of his schoolmates describe that he was a loner who was bullied.

Speaking to local news outlet KDKA, some young locals who went to school with him described him as a loner, who was frequently bullied and sometimes wore “hunting outfits to school”.

Another former classmate of his, Summer Barkley, cast him differently, telling the BBC that he was “always getting good grades on tests” and was “very passionate about history”.

“Anything on government and history he seemed to know about,” she said. “But it was nothing out of the ordinary… he was always nice.”

She described him as well-liked by his teachers.

Others simply remembered him as quiet.

“He was there but I can’t think of anyone who knew him well,” one former classmate, who asked to remain nameless, told the BBC. “He’s just not a guy I really think about. But he seemed fine.”

None of this makes the shooting less important. None of this excuses the lapses in Trump’s security that allowed it to happen.

Rather, it makes it rather more ordinary — something that Americans have grown all too used to and done far too little to prevent.

Yet, even so, the shooting has still been used to heighten America’s polarization, with partisans on both sides still trying to find party as the cause of this.

It was only a matter of time before a garden variety American school shooter decided to aim at a higher profile target. And yet we’re still not taking from it the message that everyone of these random shootings are a tragedy. Corey Comperatore, the firefighter who heroically shielded his family to protect them, is the victim of this shooting, not Trump. But he’s no more important a victim than the 20 children killed in Sandy Hook. It’s not God that chose this shooting. It is not destiny.

It is, rather, something far darker about America, something that transcends party.

Update: Parkland High father Fred Guttenberg weighs in:

Update: NYT gets to the school shooter analogy too.

Investigators have uncovered what now could be seen as concerning signs: The gunman’s phone showed that he had possibly read news stories about the teenage school shooter who killed four students at Oxford High School in Michigan. Mr. Crooks received multiple packages, including several that were marked “hazardous material,” over the past several months. He looked up “major depressive disorder” on a cellphone later found at his house.

He had also searched a bipartisan roster of political figures, including Mr. Trump, President Biden and Attorney General Merrick Garland, F.B.I. officials told members of Congress. He also looked up both the dates of Mr. Trump’s July 13 rally in Butler, Pa., as well as the Democratic National Convention in Chicago.

But investigators have not found any evidence that Mr. Crooks had strong political beliefs or an ideological motivation.

Experts who study the histories of gunmen said the emerging picture of Mr. Crooks looked more like a 21st-century school shooter than a John Wilkes Booth.

In Bid to Withhold Laptop and Hard Drive Forensic Reports, Derek Hines Misstates Hunter Biden’s View on Authenticity of Data on Laptop

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As I noted in this post, I wrote a letter to Judge Maryellen Noreika asking her to release several documents, the more interesting of which are the forensic reports on the laptop attributed to Hunter Biden and the hard drive with John Paul Mac Isaac’s purported copy of the laptop.

Abbe Lowell had no problem with the release of the forensic reports.

Mr. Biden has no objection to the release of either item requested by the journalist—the motion for miscellaneous relief at DE 167 and/or the expert disclosure of Michael Waski at DE 120-2.

Derek Hines did. He said that because he never filed the forensic reports, they are not judicial records before Judge Noreika.

However, his disclosure was never filed with the Court because the defendant agreed that the information derived from his laptop was authentic. Therefore, the expert disclosure was not included as an exhibit for ECF 120 because the certification itself sufficiently supported the motion. Moreover, since there was no dispute about the authenticity of the information derived from the defendant’s laptop, the government did not call Mr. Waski as an expert witness at trial. Accordingly, the expert disclosure is not a judicial record and is not a record before this Court that the Court could unseal.

There are several problems with this response.

First, as I wrote in my letter, nothing in the certification mentioned the laptop or hard drive it certified.

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

There is no way the public — or Judge Noreika herself — can be certain that the “Digital Forensics Report and Extraction Report,” singular, mentioned in the certification describes the forensics of both (or either!) the laptop and the hard drive. We need to see the description of that report in the Disclosure itself.

The certification relies on the Disclosure to even identify what it is certifying.

More importantly, Hines blatantly misstates Hunter Biden’s view on the authenticity of the data on the laptop. In Abbe Lowell’s response to Hines’ motion to bypass any expert witness, he specifically debunked that claim.

Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac obtaining it.

He pointedly did not agree that the data derived from the laptop (and hard drive, which I suspect has more irregularities) was “authentic” as to being his own data.

One reason I’m interested in the hard drive is because Hines himself revealed that the “backup” of it is 62% bigger than the laptop of which it purports to be a copy. Understanding why that is so might go a long way to explain anything John Paul Mac Isaac did with Hunter Biden’s data.

As I noted in my letter to Judge Noreika, Congressman Dan Bishop suggested in a deposition on the laptop last year that if the FBI, “has conducted a forensic investigation and has suppressed the results,” people shouldn’t defer to the FBI. This was an opportunity for the FBI to show it’s work.

It — or at least, David Weiss — doesn’t want to.

Update: Corrected misspelling of Hines’ last name. My apologies to him.

Update: Judge Noreika has now docketed my reply. Among other things, I noted that the creation date for the PDF of Waski’s certification post-dates the day when it was sent to Hunter Biden’s team on April 24.

 

The other certification is dated April 23.

Update: Judge Noreika has, unsurprisingly, granted the request to docket the Hallie Biden related filing, but denied the Disclosure on the laptop and hard drive.

ORAL ORDER re: D.I. [247], IT IS HEREBY ORDERED that the Sealed Motion (DI [167]) is hereby unsealed. The expert disclosure of Michael Waski is not part of the record of this case or in the Courts possession. IT IS HEREBY FURTHER ORDERED that the Court will not address further informal requests made by letter rather than appropriate motion. Ordered by Judge Maryellen Noreika on 7/18/2024. (as)

 

emptywheel Writes Letters: The FBI Extraction of the Hunter Biden Hard Drive Is 62% Bigger than the Laptop

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As I did in January, I’ve written a letter asking Judge Maryellen Noreika to liberate two documents, the more interesting of which are the forensic reports FBI did of the Hunter Biden laptop and the hard drive John Paul Mac Isaac made of the laptop. (Yes, I know it has my personal information.)

In a key passage explaining the significance of the two forensic reports, I noted that the extraction of the hard drive that purports to be a copy of the laptop is 62% bigger than extraction of the laptop itself.

In the motion in limine in support (“MIL”) of introducing those communications via summary report (DE 120), SCO relied on the expert certification of Michael Waski, a Senior Digital Forensic Examiner who, as a Forensic Analyst, was involved in exploiting the laptop in 2019. Accompanying the MIL, SCO provided Mr. Waski’s certification, which in turn incorporates by reference his expert Disclosure. (DE 120-2) The only reasons given why SCO did not docket expert Disclosures themselves were, “because those documents are voluminous and because the defendant agrees these files are self-authenticating.” Nevertheless, Mr. Waski’s certification describes his Disclosure as, “attached hereto.” 

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

Beyond that issue of completeness, Mr. Waski’s Disclosure holds additional significant public interest: (1) it would reaffirm the integrity of these proceedings, (2) it might address concerns raised in two separate Congressional investigations incorporating Mr. Biden’s devices (3) it would provide insight into derivative hard drives that have been the subject of controversy for years.

Some background explains why. The FBI obtained the two devices referenced in the MIL from computer repairman John Paul Mac Isaac. (19-mj-309 DE 3) One device, introduced into evidence as GTX16, is a MacBook Pro. The other device, a Western Digital hard drive, purports to be a copy that Mr. Mac Isaac made of the laptop; that copy is, in turn, the source of a number of other hard drives disseminated publicly, including to Congress, since 2020.

Because the hard drive purports to be a copy of the laptop, the content on those devices should substantially match. Yet the MIL suggests it may not. According to SCO, the “backup file” of the laptop (the original source) consists of 4,198 pages (DE 120 at 5). The “backup file” of the hard drive derived from the laptop (the purported copy) consists of 6,801 pages (Id.). In other words, the extracted copy made of the laptop is 62% larger, measured in pages, than the extracted original source. SCO’s office provided no response to an inquiry regarding the significant size difference in these backup files. [my emphasis]

Judge Noreika has asked the two sides to weigh in on these requests by end of day.

ORAL ORDER re Letter ( 247 ): IT IS HEREBY ORDERED that, by the close of business today, the parties shall provide the Court with their respective positions on the request for the unsealing of the two documents referenced in the letter. ORDERED by Judge Maryellen Noreika on 7/17/2024. (mdb) (Entered: 07/17/2024)

Aileen Cannon Makes Clarence Thomas’ Calvinball Newly Significant

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Aileen Cannon’s order throwing out the stolen documents prosecution may make some Calvinball Justice Thomas engaged in more important in days ahead.

Cannon actually didn’t give Trump his preferred outcome: a ruling that Jack Smith would have had to be senate-confirmed and also that he was funded improperly. Aside from the timing, neither is this outcome one (I imagine) that Trump would prefer over a referral of Jack Smith for investigation or a dismissal on Selective Prosecution or spoilation or some other claim that would allow Trump to claim he was victimized.

Rather, she adopted a second part of Trump’s argument, that Merrick Garland didn’t have the legal authority to appoint a Special Counsel, of any sort, whether someone from outside the Department or someone (like David Weiss) who was already part of it. She punted on most of the question on whether a Special Counsel is a superior officer requiring Senate confirmation or an inferior one not requiring it.

Cannon’s argument lifts directly from Clarence Thomas’ concurrence, which she cites three times (though that is, in my opinion, by no means her most interesting citation). Thomas argues that the four statutes that Garland cited in his appointment of Jack Smith are insufficient to authorize the appointment of a Special Counsel.

We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.

It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have.3 See supra, at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).

None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose. See, e.g., 43 Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. (Emphasis added.) As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. See Lucia, 585 U. S., at 254–255 (opinion of THOMAS, J.) (considering the meaning of “officer”). Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).4

To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.

4Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so.

Cannon takes Thomas’ treatment of Nixon as a “passing reference” as invitation to make truly audacious analysis of it as dicta.

D. As dictum, Nixon’s statement is unpersuasive.

Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out, thoroughly reasoned, and carefully articulated” is due near-precedential weight. Schwab, 451 F.3d at 1325–26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound by Supreme Court dictum where it “is of recent vintage and not enfeebled by any subsequent statement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” Id. at 1325–26. For these reasons, the Court concludes it is not entitled to considerable weight.

She then reviews the cited statutes one by one and deems them all insufficient to authorize a Special Counsel, with special focus on 28 USC 515 and (because Garland cited it for the first time) 533.

The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.

[snip]

Section 515(b), read plainly, is a logistics-oriented statute that gives technical and procedural content to the position of already-“retained” “special attorneys” or “special assistants” within DOJ. It specifies that those attorneys—again already retained in the past sense—shall be “commissioned,” that is, designated, or entrusted/tasked, to assist in litigation (more on “commissioned” below). Section 515(b) then provides that those already-retained special attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give the Attorney General independent power to appoint officers like Special Counsel Smith—or anyone else, for that matter.

Cannon twice notes her order applies only to the indictment before her (perhaps the only moment of judicial modesty in an otherwise hubristic opinion).

The instant Superseding Indictment—and the only indictment at issue in this Order—arises from the latter investigation.

[snip]

The effect of this Order is confined to this proceeding.

This is obvious — but it is also a way of saying that if the Eleventh backs this ruling, it would set up a circuit split with the DC rulings that she dismisses in cursory fashion.

Effectively, this represents one Leonard Leo darling, Cannon, dropping all her other means of stalling the prosecution for Trump, to act on seeming instructions from a more senior Leonard Leo darling.

A bunch of lawyers will dispute Cannon’s recitation of Thomas’ reading of the law. Indeed, Neal Katyal has already done so in an op-ed for the NYT.

Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.

Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”

Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.

I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.

This legal dispute will be aired in the Eleventh in Jack Smith’s promised appeal.

Katyal’s more salient point is in describing where this leads if Trump’s Supreme Court gets to review Special Counsel appointments at some time after the November election will determine whether the rule applies to Trump or to a normal president.

Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.

That’s the kind of explanation, after all, why Cannon would drop all her other obstruction and pursue this angle: to ensure that a second Donald Trump administration could not be threatened with even the possibility of a Special Counsel.

But I’m interested in the way Thomas ended his concurrence, to an opinion about a prosecution involving official acts of a then-president. It is not dissimilar to the way John Roberts closed his majority opinion, by claiming this was all about separation of powers.

Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.

Here, the Executive is sharply constrained, even in its prosecutorial function, by guardrails Congress has given it.

I’m not sure this is consistent with this language from Roberts’ opinion, which reads maximalist authority for presidents to conduct criminal investigations (and cites to Nixon, with its assertion of great deference on Article II issues).

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]

That is, Roberts has to read presidential authority to intervene in DOJ’s prosecutorial functions in order to sanction Trump’s plan to demand DOJ’s participation in his fraud. But then Thomas argues that the president can only do so if Congress has given him authority.

Which is it?

What If You Had a Military Summit Defending the Future of Democracy and No One Gave a Damn?

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If you read the dead tree NYT this morning, you might be forgiven for thinking that Joe Biden was isolated from America’s NATO allies.

That’s because the front page put a big picture of Biden’s NATO appearance next to an article describing Biden as isolated within his own party. That story described President Biden’s press conference marking the end of the NATO summit this way:

He faced a new test on Thursday night in a news conference following the NATO summit in Washington. In an early stumble before it even got underway, Mr. Biden flubbed his introduction of President Volodymyr Zelensky of Ukraine, saying: “Ladies and gentlemen, President Putin.” He quickly caught himself.

During the news conference, he referred to “Vice President Trump” when he meant Vice President Kamala Harris, a mistake that former President Donald J. Trump immediately mocked on social media.

But Mr. Biden showed a command of the issues on foreign policy, although he spoke slowly and meandered at times. Lawmakers and aides in Congress said it was a strong enough performance to keep the dam from breaking with mass calls for Mr. Biden to step aside, but with enough missteps to prolong the anxiety on Capitol Hill.

There was no description of the summit itself at all in the article. Nor was there a story on the summit anywhere on the dead tree front page.

That “Biden isolated” story didn’t even make the top of digital front page (at least for me), which looked this way this morning:

At that point, the top news included:

  • A story from Peter Baker acknowledging Biden’s command of foreign policy, sandwiched between a description of his flubs and a super helpful explanation of how, “every momentary flub, every verbal miscue, even if quickly corrected, now takes on outsize importance, ricocheting across the internet in viral video clips”
  • Zolan Kanno-Youngs cataloging five takeaways, in which is command of foreign policy was third:
    • He said he is not leaving
    • He got off to a rough start
    • He showed a command of foreign policy
    • He struggled to articulate why he is the best person to defeat Mr. Trump
    • He offered a strong defense of Kamala Harris
  • A Nicholas Nehamas story that, when written, focused exclusively on those (like Jim Himes) who called for Biden to drop out
  • A piece on how Joe Biden lost Hollywood
  • One of the many stories that described Biden’s polling on Kamala Harris’ strength against Trump was “quiet” (though the ridiculous claim that this was quiet has now been relegated to a subhead)
  • A purported fact check of Biden’s press conference that claimed Biden’s observation, “He’s already told Putin — and I quote — do whatever the hell you want,” needed context

The fact check said nothing about Biden’s claim, in response to a question from AFP journalist Danny Kemp, that world leaders credited Biden for bringing NATO together.

 

I’m sure you actually could find a world leader who was unimpressed with Biden’s summit — like Viktor Orbán, who scurried from the conference to plan capitulation to Putin at Mar-a-Lago. But no one wanted to talk about that — about Biden’s efforts to stave off authoritarianism, about Biden’s efforts to reverse Putin’s invasion of Ukraine, about Biden’s efforts to save the idea of democracy, about the substance of the summit. So it didn’t merit a fact check either.

There’s a horse race to be run. And there’s absolutely no place for actual policy outcomes when there’s a horse race to be had!

When I first started writing this story, I had to look way down here at the bottom of the NYT page to find any report that was, substantially, about the NATO Summit at all.

The story has been promoted, placed in a section on Trump, not Biden, though still the fourth horizontal section on the page.

The story, from David Sanger, also focused on the press conference and noted Biden’s flubs. But it also described how Trump congratulated Putin’s genius after Russia invaded Ukraine.

[T]he session also served as a platform for him to show a command of foreign policy, including describing in detail the decisions he has made over three and a half years that have been punctuated by wars in Ukraine and Gaza.

He took credit for warning the Europeans of an impending invasion of Ukraine in late 2021 and early 2022, and for preparing NATO to provide arms and intelligence as soon as war broke out. And he used the moment to remind American voters that Mr. Trump’s first reaction to the invasion was to praise President Vladimir V. Putin.

“Here’s what he said,” Mr. Biden added, his voice dripping with sarcasm: “‘It was genius. It was wonderful.’”

The biting comparison, with its suggestion that Mr. Trump admires only brute force and is in Mr. Putin’s pocket, was the kind of attack on his opponent that Mr. Biden’s supporters were hoping for in the debate between the two men two weeks ago but never heard.

Further down in that story, starting at ¶18 of a 23¶¶ story, Sanger described the news of the summit: that NATO was going to try to disrupt the relationship between China and Russia.

But it was on the question of Russia’s rapidly expanding relationship with China — and its alignment with North Korea and Iran, two other arms suppliers to Russia — that Mr. Biden broke the most new ground.

Until the news conference, he had never conceded that the United States was seeking to disrupt the relationship between the two countries, just as President Richard M. Nixon and his secretary of state, Henry Kissinger, did a half-century ago, by surprising the world with a diplomatic opening to Beijing.

He declined to discuss details of the strategy in public, but went on to say that “you’ll see that some of our European friends are going to be curtailing their investment in Russia — I mean, excuse me, in China, as long as China continues to have this indirect help to Russia.”

That was a significant reversal. Two years ago, Mr. Biden expressed doubts that the two countries, with their centuries of enmity and border disputes, could ever get along.

By the time the NATO leaders gathered this week for the 75th anniversary of the alliance, however, they were denouncing China as “a decisive enabler of Russia’s war against Ukraine” and hinting that European nations might restrict their economic interchanges with Beijing.

China “cannot enable the largest war in Europe in recent history without this negatively impacting its interests and reputation,” the summit’s declaration says, wording that was pressed by Mr. Biden’s aides.

So to find actual news of Biden’s NATO summit, you needed to scroll down the NYT to find the Sanger article, then scroll down in that article to find the news: that NATO is attempting to disrupt a growing alliance of authoritarian countries challenging democracy.

I’m genuinely not sure how NYT (and other outlets, who offered similar coverage) understand the world, wherein the fate of Joe Biden on a minute-to-minute basis can be divorced from the fate of democracy, globally. You have to have democracy before you can have horse races.

Yes, in an op-ed yesterday, NYT included Trump’s disdain for democracy and fondness for “strongmen” among the reasons he’s unfit to lead.

Mr. Trump has demonstrated contempt for these American ideals. He admires autocrats, from Viktor Orban to Vladimir Putin to Kim Jong-un. He believes in the strongman model of power — a leader who makes things happen by demanding it, compelling agreement through force of will or personality. In reality, a strongman rules through fear and the unprincipled use of political might for self-serving ends, imposing poorly conceived policies that smother innovation, entrepreneurship, ideas and hope.

But NYT did not mention that Trump not only admires these thugs, he is allied with them against democracy.

Yes, it matters that Democrats beat Trump in November. It matters that Democrats have a candidate with the stamina to do that.

But the bigger picture matters, too. And Biden’s success at marshalling democratic powers in alliance is one of the reasons he believes he has demonstrated his fitness to remain President.

His efforts to defend democracy are not news, apparently.

The Lie David Sanger Told to Sustain NYT’s Non-Stop Campaign against Joe Biden

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Predictably, the NYT treated President Biden’s speech to kick off NATO’s 75th Anniversary as if Biden merely invented the date and the event and maybe even NATO itself to cover up a shoddy debate performance. In addition to the subhead that nonsensically complained there was, “no mention of President Biden’s political peril,” in his speech, in this 25-paragraph story, NYT made this a story about Biden’s campaign by:

  • ¶1: Asserting Biden was trying to bolster the alliance and his campaign.
  • ¶2: Describing Biden’s “strong voice, with few errors.”
  • ¶4: Claiming the delivery of Biden’s speech “may have mattered as much as his words.”
  • ¶5: Falsely claiming that the “faltering” of Biden’s campaign “created a test for the alliance that it did not anticipate.”
  • ¶6: Adopting the passive voice to project its obsession with Biden’s delivery onto NATO’s leaders: “Mr. Biden made no mention of his political troubles, but he could not have escaped the fact that every word was being scrutinized for signs of faltering.”
  • ¶7: Declaring that, “By all measures, he passed the test,” but then caveating that judgement by explaining what teleprompters are.
  • ¶8: Quoting Biden’s comments to George Stephanopoulos about his role in leading NATO.
  • ¶9: Mentioning Biden’s attempt to draw a contrast with Trump and derisively adding, “the man he swears he can still beat in November.”
  • ¶10: Describing Biden’s goal for the contrast.
  • ¶13: Explaining that, “Mr. Biden’s own aides concede that no matter how well the president performs [at NATO] he cannot make Americans unsee his debate performance.”
  • ¶14: Falsely claiming that “confidence in its core member” was in doubt only because of Biden’s debate performance, and not Trump generally.

Compare that wildly partisan approach with the WaPo, which said only, “the summit is a moment of intense scrutiny as he faces pressure over his readiness to serve another four years,” in ¶12 out of 43 paragraphs (though WaPo has since added a story comparable to NYT’s, complete with claims of “defian[ce]”).

To sustain this fairytale — that the NATO summit exists merely as a measure of Biden’s ability to recover from his debate — David Sanger and Lara Jakes lie.

As noted, in ¶5, they claim that no one was worried about whether NATO could sustain its support for Ukraine until Biden’s campaign “faltered.”

The faltering of Mr. Biden’s campaign has also created a test for the alliance that it did not anticipate: whether it can credibly maintain the momentum it has built in supporting Ukraine and serving as a bulwark against further aggression when confidence in its most important player has never been more fragile. [my emphasis]

That is a lie. And one way we can be sure it is a lie — and that David Sanger knows it is a lie — is because a guy name David Sanger wrote this article, in February, which the NYT printed on A1 of the newspaper.

The February article not only describes that even before Trump suggested he would let Putin invade NATO countries, European leaders were already discussing what would happen if Trump withdrew from NATO. And that article explicitly contrasts Trump’s threats to abandon the alliance with Biden’s vocal support of it.

Long before Donald J. Trump threatened over the weekend that he was willing to let Russia “do whatever the hell they want” against NATO allies that do not contribute sufficiently to collective defense, European leaders were quietly discussing how they might prepare for a world in which America removes itself as the centerpiece of the 75-year-old alliance.

Even allowing for the usual bombast of one of his campaign rallies, where he made his declaration on Saturday, Mr. Trump may now force Europe’s debate into a far more public phase.

So far the discussion in the European media has focused on whether the former president, if returned to office, would pull the United States out of NATO.

But the larger implication of his statement is that he might invite President Vladimir V. Putin of Russia to pick off a NATO nation, as a warning and a lesson to the 30 or so others about heeding Mr. Trump’s demands.

His statement stunned many in Europe, especially after three years in which President Biden, attempting to restore the confidence in the alliance lost during Mr. Trump’s four years in office, has repeatedly said that the United States would “defend every inch of NATO territory.” [my emphasis]

Now, five months after setting up that stark contrast, David Sanger suggests that when Biden made the contrast himself in his NATO speech, it was just politics.

They were largely complimentary as Mr. Biden talked about America’s and the West’s “sacred obligation” to come to the aid of free nations and democracies under attack. He was clearly drawing a contrast with former President Donald J. Trump, the man he swears he can still beat in November. To drive home the difference between Mr. Trump’s Republican Party and the party of decades past, Mr. Biden quoted former President Ronald Reagan: “If you are threatened, we are threatened. If you’re not at peace, we cannot be at peace.”

Mr. Biden’s goal was clear: to establish Mr. Trump, with his “America First” approach and threats to withdraw the United States from the alliance, as a threat not only to NATO nations but also to his own country.

Even as Trump — in the debate that NYT deems such a disaster for Biden — described speaking to Putin about his invasion of Ukraine in advance ..,

When Putin saw that, he said, you know what? I think we’re going to go in and maybe take my – this was his dream. I talked to him about it, his dream.

David Sanger now ignores his past reporting about the very real threat that Trump posed and still poses to NATO and American security, and rewrites that into a fairytale about Biden’s age.

This election was always going to be at least close. As Sanger himself reported months ago, European allies have been anticipating the significance of a second Trump term for months.

Yet now, because the NYT is so determined to make Biden’s electoral chances the cause for everything, Trump’s own preferences get a pass and are now caused by Biden’s plight.

The cause for NATO’s concerns is Trump. Not Biden’s campaign. And once upon a time, NYT reported it that way.

The Self-Satisfied and Often Wrong Media Frenzy

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Before I make fun of the frenzied mob calling themselves DC journalists, let me point to two of the more responsible reports on Joe Biden’s aging.

One, a WaPo piece with five bylines, describes that in recent months, the President has increasingly exhibited signs of aging — but never so bad as in the debate.

President Biden, who at 81 is the oldest person ever to hold the office, has displayed signs of accelerated aging in recent months, said numerous aides, foreign officials, members of Congress, donors and others who have interacted with Biden over the last 3½ years, noting that he moves more slowly, speaks more softly and has moments when he loses his train of thought more often than even just a year ago.

None of those who spoke to The Washington Post said they had seen Biden appear as lost and confused as he did at the presidential debate against Donald Trump on June 27, where his halting performance sent panic through the Democratic Party. They largely did not question his mental acuity, and several senior White House aides who interact with Biden regularly said that he continues to ask probing, detailed questions about complicated policy matters and can recall facts from previous briefings in minute detail.

It actually draws on fairly neutral sources (diplomatic reporter John Hudson is on the byline) — world leaders and their aides who interacted with him at the G-7, who have no partisan stake but do have a very great stake in the outcome of the election — to substantiate a decline even in the weeks between the G-7 and the debate.

During the Group of Seven nations summit in Italy last month, several European leaders came away stunned at how much older the president seemed from when they had last interacted with him only a year, or in some cases, mere months earlier, several officials familiar with their reactions said. “People were worried about it,” said one person familiar with leaders’ reactions.

[snip]

[D]uring the Group of Seven nations summit in Italy last month, a number of European leaders were struck by Biden’s appearance and demeanor, according to four people who spoke directly with multiple leaders. The general impression among leaders, the people said, was that while Biden appeared capable of carrying out his duties today, they were concerned about how he would be able to serve another four-year term.

[snip]

One person familiar with the conversations among leaders said Italian Prime Minister Giorgia Meloni observed that Biden was “mentally on top of his game” but physically weak, leaving her worried. The person said those concerns became more pronounced after the debate. A spokesman for the Italian Embassy did not provide a comment.

“What has changed the discourse here in Europe is not the G-7. It’s the debate,” the person said.

Note: I seem to be the only one who remembers that this timeline includes, in addition to the pressure and travel associated with the G-7 and the expanded campaign schedule, the prosecution of his son that would never have happened were he not Joe Biden’s son. I seem to be the only one considering how stress exacerbated an aging process already in process.

In any case, this is a story about Biden’s aging accelerating, whether from the stress of your candidacy leading to the felony prosecution of your kid or not.

The same is true of another credible story getting a lot of attention. It’s another multi-byline story (none from NYT’s big names) that includes on the record quotes. But most people have focused on this quote: Perhaps the most senior person, someone with years of direct access, stating that Biden cannot pull off this race.

One senior White House official, however, who has worked with Mr. Biden during his presidency, vice presidency and 2020 campaign, said in an interview on Saturday morning that Mr. Biden should not seek re-election.

After watching Mr. Biden in private, in public and while traveling with him, the official said they no longer believed the president had what it took to campaign in a vigorous way and defeat Donald J. Trump. The official, who insisted on anonymity in order to continue serving, said Mr. Biden had steadily showed more signs of his age in recent months, including speaking more slowly, haltingly and quietly, as well as appearing more fatigued in private.

Here again, though, the story is about a decline in recent months. The story is about stamina and speech, not some undiagnosed source of dementia (or perhaps a disease that people assume leads to dementia symptoms, but doesn’t necessarily).

With that as background, I want to lay out a number of problems with the story the members of the frenzied mob — people rushing to press with stories that are far less responsible than these two (see this must-read post from Jennifer Schulze on some of the worst examples) — are telling:

  1. Even in the face of non-stop coverage about Biden’s age, a core group of particularly nasty types are claiming there was some kind of conspiracy of silence about it, and only they were heroically chasing the topic. That’s objectively false.
  2. To get to that conspiracy, the same types are suggesting that while they never had evidence Biden was this bad in January, that must be because close allies were just covering it up. This more robust reporting of a recent decline at least undermines their claims of having provided the only evidence of a prior decline.
  3. Many participants in this frenzy don’t seem to understand that there are two questions at issue: Whether Biden has the stamina to win the race, whether his fatigue and speech issues put him at a severe disadvantage to Trump or other possible Democratic contenders, and whether he has the stamina to remain President.
  4. Many members of the mob have given little more than fantasy consideration of how Biden would be replaced. That’s unsurprising, given that they gave no more than fantasy consideration of why other solid contenders weren’t challenging Biden and Harris in the primary earlier in the year, when questions about Biden’s age first got louder.
  5. Very few of the mob seem to care whether Biden is doing the job of being President well. Indeed, this is a key source of tension between the mob and Biden. When asked about his age in January and February, he gave two answers: He believed he stood the best chance of beating Trump, a belief significantly undermined by his debate performance and ongoing stamina issues. And, he pointed to his success at being President as proof he could do the job. That was objectively true. Since the mob are little interested in the job of President — or policy generally — they simply ignored his factually correct rebuttal that he was doing a historically good job of being President.

The mob’s complete disinterest in measuring which former President, Joe Biden or Donald Trump, would do better as President makes their wails much easier to dismiss.

So do some of their past errors.

In his interview with George Stephanopoulos, Joe Biden pointed to past predictions of electoral failure.

PRESIDENT JOE BIDEN: That’s not unusual in some states. I carried an awful lotta Democrats last time I ran in 2020. Look, I remember them tellin’ me the same thing in 2020. “I can’t win. The polls show I can’t win.” Remember 2024– 2020, the red wave was coming.

Before the vote, I said, “That’s not gonna happen. We’re gonna win.” We did better in an off-year than almost any incumbent President ever has done. They said in 2023, (STATIC) all the tough (UNINTEL) we’re not gonna win. I went into all those areas and all those– all those districts, and we won.

Biden is right that many of the loudest members of the mob calling for him to drop have been just as loudly wrong in the recent past.

Biden also dismissed a challenge from Mark Warner by noting that Warner had tried to run before.

GEORGE STEPHANOPOULOS: Well, if– I mean, on a more practical level, The Washington Post just reported in the last hour that Senator Mark Warner is– is assembling a group of Senators together to try and convince you to stand down, because they don’t think you can win.

PRESIDENT JOE BIDEN: Well, Mark is a good man. We’ve never had (UNINTEL). He also tried to get the nomination too. Mark’s not– Mark and I have a different perspective. I respect him.

Many many journalists attempted to debunk this claim, apparently unaware that Warner considered running in the 2008 election until I (if you believe Matt Bai, and you should not) singlehandedly chased him out of the race.

Biden’s has a point that the mob has proven badly wrong in the past.

But they’re not wrong that he may not have the stamina to both run for and be President.

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