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

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

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

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

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response — in the person of the SDFL US Attorney’s Office and DOJ’s Appellate team, because Jack Smith has already withdrawn from the 11th Circuit — to Walt Nauta and Carlos De Oliveira’s bid to enjoin the release of the stolen documents half of the Jack Smith report.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Narrow the legal dispute

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

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

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

Create a dead man’s switch

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

Implicate the Hunter Biden report

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

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

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

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

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

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

[snip]

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

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

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

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

And that’s why the Hunter Biden report matters.

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

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

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

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

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Gravity and Trump’s Conspiracy Cabinet

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

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

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

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

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

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

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

And how many children will die as a result?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Leo Wise Buries Bill Barr with Six Year Sentencing Recommendation

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

No.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

This all gets to be a bit much.

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

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

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

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

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Alexander Smirnov’s Vetting

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

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

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

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

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

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

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

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

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

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

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

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

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

Assessment content

Those are the big takeaways.

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

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

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

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

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

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

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

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

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

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

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

 

Open Items for Completion by Pittsburgh FBI

1 [redacted]

2 Corroborating [Smirnov]

a. [redacted]

b. FBI PG/HQ PCU Response regarding travel

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

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

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

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

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

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

e. [redacted]

f. [redacted]

g. Further information

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

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

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

iv. Smirnov first reported on Burisma in March 2017

v. Smirnov handler provides phone number for other person

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

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

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

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

i. How would Mykola communicate with the Bidens?

i. Smirnov didn’t know

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

Items for consideration (likely necessitating a predicated investigation)

1. Further Smirnov corroboration

a. Validation of CHS and information provided ongoing

b. Further assess Smirnov colleague through third party FBI interview

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

d. Further details on Guralnik

e. Cellebrite information on text messages with handler

f. Determine overlap with another case

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

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

2. Something else probably not Smirnov related

3. Something else probably not Smirnov related

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The Opportunity Costs of Conspiracy Theories about Merrick Garland

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You have a choice.

You can spend the next few weeks laying the groundwork for making a big stink about the fact that the aspiring FBI Director tried to help Trump steal classified documents.

Or you can spend it clinging to false claims about Merrick Garland so you can blame him for the fact that Trump won reelection rather than blaming the guy directly responsible for preventing a trial (and the guy who’ll remain responsible for Trump’s license going forward), John Roberts, to say nothing of the failed Democratic consultants and voters themselves.

Sadly, Democrats and lefties — from random people on Bluesky to TV lawyers to the President himself — are choosing the latter path, the path that will guarantee they remain maximally ineffective.

They’re rolling out all the tired false claims: Merrick Garland waited before investigating people close to Trump, they claim. According to NYT, Garland approved an effort to follow the money in his first meeting with prosecutors — an effort that turned out to be a dry hole, but nevertheless was precisely the approach that people like Sheldon Whitehouse and Andrew Weissmann demanded.

After being sworn in as attorney general in March 2021, Merrick B. Garland gathered his closest aides to discuss a topic too sensitive to broach in bigger groups: the possibility that evidence from the far-ranging Jan. 6 investigation could quickly lead to former President Donald J. Trump and his inner circle.

At the time, some in the Justice Department were pushing for the chance to look at ties between pro-Trump rioters who assaulted the Capitol on Jan. 6, 2021, his allies who had camped out at the Willard Hotel, and possibly Mr. Trump himself.

Mr. Garland said he would place no restrictions on their work, even if the “evidence leads to Trump,” according to people with knowledge of several conversations held over his first months in office.

“Follow the connective tissue upward,” said Mr. Garland, adding a directive that would eventually lead to a dead end: “Follow the money.”

In June 2021, they focused on the Willard, precisely the people everyone wanted investigated.

In late June, Mr. Garland, Ms. Monaco and several aides decided they needed to take a dramatic step: creating an independent team, separate from Mr. Cooney’s original group, tasked with investigating the Willard plotters, with no restriction on moving up the ladder to Mr. Trump if the evidence justified it.

They did not want too many people knowing about it. So they gave it a vanilla name: the “Investigations Unit.”

NYT misses — as everyone else has, too — one of the most opportunistic things DOJ did to accelerate the investigation. It used the existing warrant for Rudy’s devices obtained on Lisa Monaco’s first day on the job, April 21, 2021, to do a privilege review of the January 6 content at the same time. The Special Master prioritized the phone Rudy used on January 6 — 1b05A, which appears throughout Rudy’s privilege log for January 6 related material — and started turning over that material to DOJ starting on November 11, 2021. That effort yielded at least one key document that shows up in Trump’s January 6 indictment but not the January 6 Report, as well as encrypted content not available anywhere else.

DOJ started with Rudy, Co-Conspirator 1, the guy through whom the entire fake elector plot got pitched to Trump, and people are whining that DOJ didn’t start at the top of the conspiracy. They did. You just didn’t notice.

Those are not the only things DOJ was doing in 2021. The plodding DOJ IG started investigating Jeffrey Clark on January 25, 2021. DOJ appears to have figured out a way to solve a difficult problem — how to get waivers of Executive Privilege without violating White House contact policies — in July 2021. DOJ sent overt subpoenas pertaining to Co-Conspirator 3, Sidney Powell, in September 2021. DOJ was also working to fill out the encrypted communications the militias exchanged with people like Roger Stone (who first showed up in a court filing in March 2021) and Alex Jones, but it took even longer, over a year, to exploit Enrique Tarrio’s phone, than it did Rudy’s, nine months, and that process necessarily requires working phone by phone.

You can complain that investigations take too much time. You can gripe that investigators did precisely what everyone wanted them to do — follow the money and investigate the Willard. But they were pursuing precisely the angles people were demanding, and long before virtually everyone understands.

That 2021 focus is inconsistent with other conspiracy theories people are floating, too: None of this started until Jack Smith was appointed (or that Jack Smith gave it new life), they say. Nothing happened for two years, they say.

As far as I know, every phone that went into the indictment and immunity brief (which added information from Boris Ephsteyn and Mike Roman’s phone) was seized before Smith’s appointment. The onerous 10-month process of obtaining Executive Privilege waivers for testimony from Trump’s top aides, without which you couldn’t prove that Trump held the murder weapon — the phone used to send a tweet targeting Mike Pence during the riot — started on June 15, 2022, five months before Smith’s appointment. Jack Smith looks prolific to those who don’t know those details, because 10 months of hard work finally came to fruition in the months after he was appointed.

The claim nothing happened for two years? The only major investigative step that happened after the two-year anniversary of Merrick Garland’s confirmation was Mike Pence’s testimony.

The claims people are using to blame Merrick Garland that Trump was reelected — all of them!!! — are easily falsifiable. (I’m happy to entertain arguments that Garland’s grant of Special Counsel status to David Weiss affected the election, but the decision to keep Weiss was one Biden made.) The single possible action from DOJ (likely either Brad Weinsheimer or Public Integrity) that could have created a delay would be pre-election limits on what prosecutors could including the August 2024 superseding indictment. But it’s just as likely that prosecutors believed a narrow superseding indictment was tactically smart.

This is the point, though. This is not about Merrick Garland. I’m happy to criticize him for things he did. I’ve written more critical of his picks and handling of Special Counsels than anyone.

I could give a flying fuck about Merrick Garland.

What I care about is that at a time when we need to start establishing means of accountability for a second Trump term, much of the Democratic world has chosen instead to wallow in false claims about the Trump investigation in order to make Garland a scapegoat, rather than the guy directly responsible, John Roberts. It’s classical conspiracy thinking. Something really bad happened (Trump got elected), it’s not entirely clear why (because almost no one bothers to learn the details I’ve laid out here, to say nothing of considering the political work that didn’t happen to make Trump own this), and so people simply invent explanations. Every time those explanations get debunked, people double down on the theory — it’s Garland’s fault — rather than reconsidering their chosen explanation.

And those explanations have the effect of distracting attention from Roberts. Rather than talking about how six partisan Justices rewrote the Constitution to give the leader of the GOP a pass on egregious crimes, Democrats are choosing to blame a guy who encouraged prosecutors to follow the money in March 2021.

It’s a choice. And it’s a choice that guarantees maximal impotence. It’s a choice that eschews actual facts (and therefore the means to actually learn what happened). It’s a choice that embraces irrational conspiracy thinking (which makes people weak and ripe for manipulation by authoritarians). It’s a choice that distracts from Roberts’ role.

And there is a better, more urgent, option.

We have every reason to believe we’ll get a report from Jack Smith (though I would be unsurprised if Trump tried to enjoin its release). Given David Weiss’ great rush to sentence Alexander Smirnov on January 8, I suspect we’ll get a report from Weiss too. My guess (given Weiss’ January 8 sentencing day) is we may get both reports at the same time — maybe January 10 or so. That’s a wildarse guess.

And so rather than in wallowing in conspiracy theories, Democrats would do well to prepare a messaging plan for those reports.

I expect David Weiss’ report to smear up not just Hunter but also Joe Biden, for pardoning Hunter. I expect he’ll suggest that Kevin Morris’ support of Hunter (a loan Hunter would have had to pay back after the election, but which he had no means to pay) has amounted to a massive campaign contribution to Joe. I wouldn’t even rule out Weiss pushing for Republicans to impeach Biden over that.

I spoke with Harry Litman back in November about what a Jack Smith report might have. Remember, his mandate is to describe both charging decisions (the two indictments he filed) but also declination decisions (the people and crimes he didn’t charge).

That means the report — if Trump doesn’t thwart its release — should answer a lot of questions that have people spun into conspiracy theories. Why didn’t Smith charge all of Trump’s co-conspirators (probably because the Mueller investigation showed how futile it would be to charge anyone before Trump, which the Florida prosecution seems to confirm)? Why didn’t Smith charge any members of Congress (undoubtedly because their actions would be covered by Speech and Debate, as confirmed by a DC Circuit opinion written about the exploitation of Scott Perry’s phone)? It likely will even provide more fulsome descriptions of the documents Trump refused to give back.

But there are three possible or likely aspects to the report that may become important for the confirmation of Trump’s appointees (which is one reason he might try to enjoin the release) and the pardons he plans shortly thereafter.

First, prosecutors had investigated how Trump used money raised on a promise to spend on election integrity to instead pay everyone off. That’s how he paid Deputy Attorney General nominee Todd Blanche, Solicitor General nominee John Sauer, and PADAG Emil Bove (Bove does not need Senate confirmation). Trump’s incoming Chief of Staff (who also does not need Senate confirmation), Susie Wiles, managed much of that process. DOJ did not charge this scheme, but we may get an explanation for what it entailed and why Smith didn’t charge it. While Blanche, et al, have no legal exposure themselves in the way Trump paid them, if we learned more about it, it would further highlight the wildly inappropriate conflicts all these men would have in running DOJ. That is, there’s the distinct possibility that a report would provide tangible explanation for why Blanche and Sauer have grave conflicts.

Far more important is the point I made here. FBI Director nominee Kash Patel may figure in both sides of Jack Smith’s report, the January 6 and the documents side. With Christopher Miller, Kash engaged in what Barry Loudermilk treated as insubordination by refusing Trump’s order to get him 10,000 troops for January 6; this post talked about how that might be a more productive way to make Loudermilk’s Liz Cheney referral a problem for Kash. That’s a way to raise distrust of Kash among Republicans.

But Kash’s involvement in the other side of the investigation (which appears at 19:00 in the video above) is more important. A key prong of the investigation into Trump’s treatment of the documents found at Mar-a-Lago involve disproving Kash’s public claim — made just before DOJ subpoenaed the documents — that Trump had declassified everything.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

Someone whose potty mouth resembles Eric Herschmann (Person 16) debunked this claim just before Patel (Person 24) testified.

What Kash said in his immunized November 2022 testimony didn’t show up in either of the Florida indictments (and we only got reports of what he thought he’d say beforehand). We don’t know whether he backed off his unsworn comments. We don’t know whether he gave testimony debunked by five other people. We don’t know how much Kash had to say about efforts to take the Crossfire Hurricane binder home.

But all that is highly likely to show up in a report.

If we get the report, it is highly likely that we’ll get evidence that the aspiring FBI Director lied to help Trump take classified documents home from the White House.

If we get the report, it is highly likely that, shortly before his confirmation process, we’ll get evidence that the aspiring FBI Director helped Trump commit a crime.

Now, the Republicans don’t care. That’s not going to affect their willingness to rubber stamp Kash’s nomination. But if Democrats do their job well, then they can use this information to dramatically raise the costs of the Kash confirmation.

Or Democrats can continue to wallow in conspiracy theories about Merrick Garland.

Finally, I think it highly like a report — if we get one — will talk about how Trump’s call to the rally motivated certain key rioters to conspire to obstruct the election. We’ll learn about how his exhortation to Stand Back and Stand By had an immediate effect on Proud Boy membership. We’re likely to learn about how Danny Rodriguez immediately responded to Trump’s targeting of Mike Pence in his January 6 speech to make slitting motion at his throat, naming Joe Biden, and then proceeded to almost murder Michael Fanone, pretty close to meeting the Brandenberg definition of incitement. We’re likely to learn how the guys who helped breach the East door, then broke into the Senate gallery, then rappelled down to the Senate floor and let others in believed that Trump ordered them to come to DC on December 19, 2020. Trump has been desperate to prevent just this evidence from being submitted at trial.

But it will also raise the stakes of his pardons. If this information comes out, then it will make it clear that Trump isn’t just pardoning his fans, he’s pardoning people who believed they were responding to his orders to attack Congress.

Democrats can spend the time between now and confirmation hearings making ever-evolving conspiracy theories about Merrick Garland, something that makes them as weak as possible, something that makes them more susceptible to authoritarian manipulation.

Or they can spend the time making it clear just how corrupt Trump’s appointments and pardons are.

Democrats seem to be struggling even to chew gum without faceplanting. They can’t do both.

It’s just my opinion. But I think Democrats would be far better served focusing on the facts that we do know from the twin investigations of Trump rather than inventing false claims about why they didn’t go to trial. This is the work Democrats didn’t do in 2023, when Trump was making unchallenged false claims that these investigations were witch hunts. The failure to do that work is a more direct explanation why the indictments didn’t disqualify him with voters than anything Merrick Garland did or didn’t do. And until Democrats do this work, they’ll be politically sunk.

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The Two Smear Attacks against Jeff Bezos and His Partner

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Jeff Bezos doesn’t tweet much.

On July 14, he proclaimed that, “Our former President showed tremendous grace and courage” after being shot.

On November 6, shortly after spiking a WaPo editorial describing how unfit Trump is to be President, Bezos congratulated “our 45th and now 47th President on an extraordinary political comeback and decisive victory.”

On November 21, Bezos debunked Elon Musk’s claim that Bezos, “was telling everyone that @realDonaldTrump would lose for sure, so they should sell all their Tesla and SpaceX stock.” “100% not true,” Bezos replied, without noting how Elon had conflated Trump’s success with his own, including the rocket company that directly competes with Bezos’ own spaceship project.

By December 20, Bezos had found common cause with his rival. Both shifting people from the “low productivity” government sector to the “high productivity” private sector and deregulation “results in greatly increased prosperity,” the richest man in the world said. “Both of these are correct and the first is widely under appreciated,” the second richest man replied. Neither clarified whether the “greatly increased prosperity” in question was their own, or that of the people out o f their secure government job.

When Bezos RTed Bill Ackman’s explanation of why a New York Post story claiming” Jeff Bezos to marry fiancée Lauren Sanchez in lavish $600M Aspen wedding next weekend” was not credible. “Unless you are buying each of your guests a house, you can’t spend this much money,” then, it was just his fifth tweet since February.

 

The owner of the Washington Post engaged in a bit of press criticism in that tweet, apparently denying not just that he’s dropping $600M on a party, but that the party would happen this week at all (I believe the date of the purported wedding has now passed with no wedding).

Furthermore, this whole thing is completely false — none of this is happening. The old adage “don’t believe everything you read” is even more true today than it ever has been. Now lies can get ALL the way around the world before the truth can get its pants on. So be careful out there folks and don’t be gullible.

Will be interesting to see if all the outlets that “covered” and re-reported on this issue a correction when it comes and goes and doesn’t happen.

Bezos — whose rag (according to a Will Lewis interview with Ben Smith) specifically pointed to brainless dick pic sniffing about Hunter Biden that didn’t correct WaPo’s past errors to rebut claims of bias — believed he’d get “corrections” to salacious stories from Daily Mail and NY Post of the kind that made Hunter Biden dick pics A Thing.

Let me state that more clearly. A man whose newspaper chose to respond to political pressure by letting the Daily Mail and NYPost and Fox News serve as assignment editors for his journalists demanded that the Daily Mail and NYPost adhere to a higher standard than the still-uncorrected WaPo.

That’s why I decided to revisit this incident after watching this exchange, about the problems with traditional journalistic efforts to achieve objectivity in the face of asymmetric approaches to truth.

Bezos, of course, tried to explain his decision to intervene in the content of his rag (by spiking the Kamala Harris endorsement) by suggesting WaPo simply isn’t being realistic about perceptions of bias, then adding to perceptions of bias by failing to disclose all the conflicts that might have led him to curry favor with Trump.

In the annual public surveys about trust and reputation, journalists and the media have regularly fallen near the very bottom, often just above Congress. But in this year’s Gallup poll, we have managed to fall below Congress. Our profession is now the least trusted of all. Something we are doing is clearly not working.

[snip]

Likewise with newspapers. We must be accurate, and we must be believed to be accurate. It’s a bitter pill to swallow, but we are failing on the second requirement. Most people believe the media is biased. Anyone who doesn’t see this is paying scant attention to reality, and those who fight reality lose. Reality is an undefeated champion. It would be easy to blame others for our long and continuing fall in credibility (and, therefore, decline in impact), but a victim mentality will not help. Complaining is not a strategy. We must work harder to control what we can control to increase our credibility.

Weeks later, after sucking up to Trump post-election, Bezos’ rag buried news of the unfitness of Trump’s nominees behind 7 pieces on the Hunter Biden pardon.

The continued reliance on dick pic sniffing to convince right wingers the WaPo is not biased is particularly rich [cough] coming from Bezos, newly targeted by gossip from the Daily Mail picked up by NYP.

Bezos, of all people, should have known better than to exploit a guy targeted with revenge porn by hostile nation-states and political partisans. In 2019, the NY Enquirer, while under Non-Prosecution Agreement for its past Kill and Capture activities, tried to extort him with … dick pics. As a Dylan Howard email described when trying to get Bezos to call off an investigation into Saudi ties in all this, the rag that had intervened in 2016 to help elect Trump had ten damning pictures disclosing what was then an affair with Lauren Sanchez while Bezos was still married.

In addition to the “below the belt selfie — otherwise colloquially known as a ‘d*ck pick’” — The Enquirer obtained a further nine images. These include:

· Mr. Bezos face selfie at what appears to be a business meeting.

· Ms. Sanchez response — a photograph of her smoking a cigar in what appears to be a simulated oral sex scene.

· A shirtless Mr. Bezos holding his phone in his left hand — while wearing his wedding ring. He’s wearing either tight black cargo pants or shorts — and his semi-erect manhood is penetrating the zipper of said garment.

When Bezos preemptively exposed that effort (an effort that mysteriously didn’t turn into charges for a violation of National Enquirer’s past NPA), he attributed the attack to his ownership of the WaPo. But, the same guy spiking endorsements of Trump’s opponent and relying on dick pic sniffing to stave off claims of bias said then, his stewardship of the WaPo would remain unswerving.

Here’s a piece of context: My ownership of the Washington Post is a complexifier for me. It’s unavoidable that certain powerful people who experience Washington Post news coverage will wrongly conclude I am their enemy.

President Trump is one of those people, obvious by his many tweets. Also, The Post’s essential and unrelenting coverage of the murder of its columnist Jamal Khashoggi is undoubtedly unpopular in certain circles.

(Even though The Post is a complexifier for me, I do not at all regret my investment. The Post is a critical institution with a critical mission. My stewardship of The Post and my support of its mission, which will remain unswerving, is something I will be most proud of when I’m 90 and reviewing my life, if I’m lucky enough to live that long, regardless of any complexities it creates for me.)

It turns out, as happened the last time someone tried to start a scandal about Bezos’ relationship with Sanchez, the second richest man in the world didn’t have to rely on journalistic ethics to combat the dick pic sniffing.

Both the Daily Mail and the NYP prominently (including in a blurb added to the NYP video, above) added Bezos’ denial to their original stories.

Sources told the DailyMail.com that the billionaire Amazon founder, 60, and his ex-TV news anchor fiancée, 55, had bought out ritzy sushi restaurant Matsuhisa in the Colorado ski town for December 26 or 27, and have their nuptials planned for Saturday 28.

Three sources told DailyMail.com they had been made aware of the Bezos wedding taking place on December 28.

However, after the Daily Mail published the story, Bezos’s team, denied the wedding was going ahead next weekend.

The billionaire took to X on Sunday to slam the wedding claims as ‘completely false’.

‘This whole thing is completely false – none of this is happening,’ he posted on X. ‘The old adage “don’t believe everything you read” is even more true today than it ever has been.’

And by the time I returned to this exchange on Xitter, the link Ackman had RTed had been disabled, as if Xitter had [gasp!] throttled a link to a NYP story!

It didn’t even take the date of the alleged marriage passing for everyone to have cleaned up a story about the second richest man in the world!

Must be nice not to have to rely on corrections.

The problem is so, so much worse than an asymmetric relationship with the truth.

But it has a happy ending for defense contractor Jeff Bezos, whose Blue Origin rocket company was the most obvious hint of payback for his sycophancy, launched yesterday. Bezos posted rocket launch porn on his account at rival rocket man Elon’s site, and accepted the congratulations of numerous people, including his rocket man rival.

We are so beyond the stratosphere of symmetrical relationships to the truth.

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

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

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

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

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

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

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

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

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

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

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

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

We don’t live in that world.

Trying to budge Republicans from their reassurances would backfire.

Here’s why.

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

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

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

KRISTEN WELKER:

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

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

You won’t ever concede —

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

But you’re going to be the president.

PRESIDENT-ELECT DONALD TRUMP:

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

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

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

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

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

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

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

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

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

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

None.

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

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

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

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

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

Gone!

Poof!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A damn good question for a confirmation hearing.

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

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

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

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

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

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

RADDATZ: Would Donald Trump go after his political opponents?

VANCE: No —

RADDATZ: He suggested that in the past.

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

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

(CROSSTALK)

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

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

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

Kamala Harris is explicitly —

RADDATZ: Senator Vance, I —

(CROSSTALK)

VANCE: — censorship of folks who disagree with her.

RADDATZ: I want to go back to Donald Trump.

(CROSSTALK)

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

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

He often went after them in public, too.

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

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

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

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

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

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

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

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“Friendly to Us:” NYT Buries Its Own Role in Trump’s Attacks on Rule of Law

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There comes a time in almost every Trump legal scandal where evidence comes out that Trump insiders believe they manipulated Maggie Haberman to serve Trump’s interests.

Evidence that both Roger Stone and Rick Gates used Maggie for various purposes came out in the Mueller investigation files, as when Gates claimed leaking Trump’s foreign policy speech to Maggie was a way to share it with Stone.

At Trump’s NY trial, Michael Cohen described how he deliberately misled Maggie about the nature of the payments he made to Stormy Daniels.

Perhaps the most damning example came in Cassidy Hutchinson’s testimony, where she described how, after her last appearance before the January 6 Committee while still represented by Stefan Passantino, he took a call from Maggie and confirmed that Hutchinson had just finished testifying to the committee.

His phone is ringing.

I look down at his phone. It’s Maggie Haberman calling him. And I looked at Stefan, and I said, “Stefan, did you tell Maggie Haberman that we were meeting with the committee today?”

And he’s like, “No, no. Maybe that’s not what she’s calling me about.”

And I said, “Stefan, did you tell Maggie that we were meeting with the committee today?

And he said, “No, no, but I should probably answer to see if she knows, right? I should answer.”

And said, “Stefan, no. I don’t think you should answer that call. She probably wants to know if we met with the committee today.”

He said, “Cass, I’m just going to answer. It will just be 2 seconds. I just want to find out what she’s going to talk to me about.”

He answers.

I can’t hear what she’s saying, but I hear Stefan say, “Yeah, yeah, we did just leave her third interview. You can put it out, but don’t don’t – don’t – don’t make it too big of a deal. I don’t think she’ll want it to be too big of a deal. All right. Thanks.”

And I said, “Stefan, was that Maggie Haberman asking about my interview?”

And he said, “Yeah, but don’t worry. She’s not going to make it a big deal.”

I said, “Stefan, I don’t want this out there.”

He said, “Don’t worry. Like, Maggie’s friendly to us. We’ll be fine.”

So I was just like, “Whatever.” I was annoyed.

Hutchinson went on to describe how, even as Passantino was discouraging Hutchinson from reviewing documents in a SCIF that would allow a follow-up appearance, Passantino and Alex Cannon spent the weekend talking to Maggie about Hutchinson’s testimony.

So I reached out to him on Monday, May 23rd: “Has [redacted] reached out about the SCIF?”

And then he was just kind of being wishy-washy with it.

He also let me know on that phone conversation that Maggie Haberman, quote, “got a story from the committee about my third interview,” end quote, and he spent he, Stefan, spent the whole weekend with Alex Cannon convincing Maggie Haberman not to publish the story that she got from the committee about my third interview.

Hutchinson described her particular disinterest in sharing her story with Maggie (and Josh Dawsey, another Trump whisperer).

And s0 now we’re moving into the phase of you know, I did my best throughout this whole period — I don’ like talking to reporters. Reporters would text me during this period. Ninety-nine percent of reporter texts always go unresponded to. I don’t like talking to reporters. I think there are some that I have, like, a friendship/working relationship with that I knew from being on the Hill and at the White House, but, like, Josh [Dawsey], Maggie Haberman, all those people, I stay very clear from.

But Josh [Dawsey], for example, had started reaching out to me and saying that he heard that the committee was in talks with Stefan about bringing me in for a SCIF interview and a live testimony; where did I stand on that with Stefan?

Say what you will about Maggie’s role in all this: Assuming it was her on Passantino’s phone (Hutchinson does not name the journalist in her book), she was just chasing a big story.

But there’s no doubt that one source of Hutchinson’s distrust of Passantino in the period leading up to her decision to get new lawyers stemmed from his willingness to share details of her testimony with Maggie — at least as she portrayed it — against her wishes.

“I don’t think you should answer that call,” Hutchinson said.

“Don’t worry,” the attorney representing Hutchinson but paid by a Trump entity said. “Like, Maggie’s friendly to us. We’ll be fine.”

None of that shows up in NYT’s faux savvy review of the game behind Barry Loudermilk’s referral of Liz Cheney for criminal investigation for allegedly intervening in Hutchinson’s legal representation at the time. NYT doesn’t bother to disclose to readers that, as Hutchinson described it, Maggie — who is bylined — played as significant a role in the breakup of the relationship between Passantino and Hutchinson as Cheney did.

Having failed to disclose Maggie’s alleged role in all that, here’s how — starting 28¶¶ in — NYT ultimately describes Loudermilk’s report and the claims within it.

The House report on Ms. Cheney, prepared by a Republican-led subcommittee on oversight, was specifically focused on the former representative, who broke with her G.O.P. colleagues over their ongoing support of Mr. Trump in 2021. But she has also infuriated Mr. Trump not only because she helped to lead the congressional investigation into him, but because she crossed party lines in the election and campaigned against him in support of Ms. Harris.

The report claimed that Ms. Cheney may have violated “numerous federal laws” by secretly communicating with Cassidy Hutchinson, a star witness for the Jan. 6 committee, without the knowledge of Ms. Hutchinson’s lawyer.

When Ms. Hutchinson was first approached to provide testimony to the committee, she was represented by a lawyer who had once worked in the Trump administration’s White House Counsel’s Office.

After meeting with Ms. Cheney, she hired a different lawyer and her subsequent public testimony was damaging to Mr. Trump. It included allegations that he had been warned his supporters were carrying weapons on Jan. 6, but expressed no concern because they were not a threat to him.

The report asked the F.B.I. to investigate whether Ms. Cheney’s dealings with Ms. Hutchinson were carried out in violation of a federal obstruction statute that prohibits tampering with witnesses. The report also accused Ms. Hutchinson of lying under oath to the committee several times and suggested that investigators examine whether Ms. Cheney had played any role in “procuring another person to commit perjury.” [my emphasis]

There’s a lot that’s misleading in this description. As I’ve noted, the section of the report describing DOD’s failures is actually longer (39 pages as compared to 36) than the section on Cheney and Hutchinson. Particularly given Loudermilk’s silence about Kash Patel’s role in what Loudermilk claims was DOD misconduct, to claim the report was “specifically focused” on Cheney is particularly misleading.

Maggie, writing with Alan Feuer, takes as proven the timeline Loudermilk lays out, which overstates what the evidence shows. While Cheney did communicate directly with Hutchinson, that was in June 2022, hours after Passantino had advised Hutchinson to take the “small element of risk to refus[e] to cooperate” with the committee any further in light of DOJ’s declination to press contempt charges against Mark Meadows. Hutchinson initiated the communication with Cheney and did so because, as she told Passantino, “I don’t want to gamble with being held in contempt.”

NYT asserts that what was damning about Hutchinson’s testimony after she ditched Passantino was Trump’s knowledge that people were refusing to go through magnetometers, but he wasn’t concerned because they wouldn’t hurt him. Hutchinson did tell that story publicly on June 28, 2022 (and J6C played earlier video testimony she had provided). But that thread of testimony started in her first interview in February 2022 and continued in her May 2022 interview, both of which Passantino attended. It all stemmed from texts she exchanged with Tony Ornato (texts that also make clear Trump “kept mentioning [a trip to the Capitol] before he took the stage” to give his speech).

To the extent this is among the things Loudermilk claimed Hutchinson lied about, Loudermilk’s case is based on word games, conflating formal intelligence with notice from Secret Service manning the rally that rally goers had (at least) flagpoles that were triggering the mags, misrepresenting a conversation Hutchinson claims she and Tony Ornato had with Mark Meadows, and ignoring that one of Ornato’s denials amounted to a claim he didn’t remember.

Plus, Hutchinson always emphasized that Trump’s concern was “get[ting] the shot,” packing enough bodies into the audience to make it look crowded, and not about ensuring that his supporters could keep their weapons before they marched to the Capitol. The claim that Trump knew his supporters were armed was legally damaging; it meant he knew the risk when he riled them up further about Mike Pence. But that’s not how Hutchinson spun it and it was testimony rooted in what she said in Passantino’s presence.

A reader might expect some assessment of Loudermilk’s claims in an article that boasts, as the headline of this does, that “Republicans Map a Case Against Liz Cheney.” No they didn’t. They floated a number of flimsy claims that don’t amount to a crime. You’re reporters. Act like it. Make that clear (as Philip Bump did here), rather than pretending Loudermilk’s claims aren’t mere whitewash.

The report neither links nor shows much understanding of the report itself. Even where it quotes lawyers about the viability of the charges, it doesn’t mention (for example) that the Jack Smith investigation resulted in a new Speech and Debate opinion that would apply to Cheney’s actions.

The real sin with the four-paragraph description of Loudermilk’s case, however, is one closely tied to Maggie’s own undisclosed role in it. NYT claims that Passantino was merely a former Trump White House Counsel. That’s not the issue. The issue, which goes to the core of the dispute and the reason Hutchinson replaced him, is that he was paid by entities associated with Trump, and Hutchinson came to believe he represented Trump’s interests over her own.

Loudermilk packages up as a crime actions Cheney took to give Hutchinson confidence her attorney was representing her interests, not Trump’s. Loudermilk packages up as a crime Hutchinson’s effort to avoid what even Passantino depicted as a risk of a contempt referral.

When Passantino told Hutchinson that it was okay for him to share information against her wishes because, “Maggie’s friendly to us,” was he also expecting that Maggie might misrepresent his role in all this (and leave his name unmentioned)?

That’s why you disclose such things.

The rest of this column (NYT bills it as analysis and claims the reporters who wrote it have “deep experience in the subject,” which is one way you might describe involvement in the story you’re telling) focuses on describing how delivering this report after Trump’s public demands, “reliev[es] Mr. Trump of the potentially fraught step of explicitly ordering the inquiry himself.”

A “friendly to us” reporter treats Trump’s word games as if they absolve him of responsibility.

¶¶4-14 describe Trump’s contradictory claims, including an uncorrected quote from Trump’s spox that “the nation’s ‘system of justice must be fixed and due process must be restored for all Americans.'”

¶¶15-23 describe Trump’s efforts to gin up investigations into his adversaries in his first term and going forward. The section includes multiple grossly misleading claims. First, it falsely insinuates that Trump never got the investigation of Hillary he demanded.

During his first presidential campaign, he often joined crowds at his rallies in chanting, “Lock her up!” — a reference to his opponent Hillary Clinton, whom he and other Republicans believed should have been investigated for using a private email server while she was secretary of state. After he won that election, however, Mr. Trump appeared to soften his stance, telling The New York Times editorial board that he did not want to “hurt the Clintons.”

But Mr. Trump, facing a special counsel investigation of his own, changed his mind again in 2018, telling his White House counsel that he wanted to order the Justice Department to investigate Mrs. Clinton.

[snip]

While the White House counsel ultimately declined to approve his plans to investigate Mrs. Clinton, Mr. Trump made clear on social media during his years in office that he believed various people should be prosecuted.

NYT simply ignores the Clinton Foundation investigation predicated in significant part on Bannon-associated oppo research that (as NYT reported) continued throughout Trump’s first term.

More problematic, given the suggestion that someone stopped Trump from getting a Special Counsel investigation into Hillary, it ignores that Special Counsel John Durham not only insinuated two false statement indictments against people associated with Hillary — both of which ended in acquittal — were conspiracies, but fabricated a claim about Hillary to which he dedicated an 18-page section in his final report.

NYT goes onto to — again — falsely suggest that Trump never got a special counsel investigation into Joe Biden.

Mr. Trump has called for Jack Smith, the special counsel who brought two criminal cases against him last year, to be “thrown out of the country.” And after he was arraigned on the first of Mr. Smith’s indictments, he said that, as president, he would appoint “a real special prosecutor” to “go after” President Biden and his family. (He has since backed away from his position on specifically investigating the Bidens.)

NYT’s “friendly” journalists would have you to believe they are ignorant that:

  • Trump extorted Ukraine for dirt on Hunter and Joe Biden
  • During Trump’s first impeachment, his personal attorney solicited such dirt from known Russian agents
  • Bill Barr set up a side channel via which Rudy could share that dirt obtained from Russian agents and others
  • Somehow, an FBI informant willing to frame Joe Biden came to share a claim that Mykola Zlochevsky bribed Biden that got laundered to the Biden investigation via that side channel
  • Trump spoke directly to both Barr and Jeffrey Rosen about the investigation into the Bidens
  • After David Weiss announced a plea deal with Hunter Biden, Trump attacked Weiss, contributing to threats against Weiss’ family
  • After Barr made public representations about the false bribery allegation, Weiss reneged on Hunter’s plea deal and obtained Special Counsel status and chased the bribery allegation, only to discover it was false

Trump already got his Special Counsel to investigate Joe Biden, and just in time for election season. And while it flopped when Weiss discovered Scott Brady’s vetting failed to find obvious problems with the bribery claim, it nevertheless led to felony charges against Hunter and a humiliating trial in June.

Suggesting Trump didn’t get a Special Counsel to investigate the Bidens is propaganda, just as suggesting he didn’t get one to pursue Hillary is.

But I guess that’s what Trump’s people know they’ll get when they work with a journalist “friendly to us.”

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David Weiss’ Rush Job on Alexander Smirnov’s Sentencing

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As I noted in an update to this post, Alexander Smirnov, the FBI informant who attempted to frame Joe Biden with bribery in 2020 as part of Bill Barr’s side channel for dirt on Hunter Biden, has pled guilty.

In his plea deal, Smirnov admitted,

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

Yesterday, Judge Otis Wright accepted Smirnov’s plea.

I’ll have a more substantive post about how David Weiss, along with an absolutely supine media, appears to have buried the frame job to which he was a witness.

For now, I want to point to a notable feature of the plea: the timing of it. One of the terms of the deal was that Smirnov agree to be sentenced within 30 days of his plea colloquy, but not before January 8.

3. Defendant agrees to:

a. At the earliest opportunity requested by the SCO-W and provided by the Court, appear and plead guilty to:

i. Count Two of the indictment in United States v. Alexander Smirnov, 2:24-CR-00091-ODW, which charges defendant with causing the creation of a false and fictitious record in a federal investigation, in violation of 18 U.S.C. § 1519 (hereafter the “obstruction of justice indictment”).

ii. Counts One, Five and Eight, of the indictment in United States v Alexander Smirnov, 2:24-CR-00702-ODW, which charges the defendant with tax evasion for tax years 2020, 2021 and 2022, in violation of 26 U.S.C. § 7201 (hereafter the “tax evasion indictment”).

b. Request that the Court sentence the defendant within 30 days of entry of the entry of his guilty pleas, but not sooner than January 8,2025

In yesterday’s plea, Judge Wright set that schedule in motion.

The Court refers the defendant to the Probation Office for the preparation of an EXPEDITED presentence report and continues the matter to January 8, 2025 at 10:30 a.m., for sentencing. Position papers are due 2 weeks before the sentencing. If the papers are NOT submitted in time, they will not be considered.

All dates other than the sentencing hearing date are vacated as to this defendant.

Counsel are notified that Federal Rule of Criminal Procedure 32(b)(6)(B) requires the parties to notify the Probation Officer, and each other, of any objections to the Presentence Report within fourteen (14) days of receipt. Alternatively, the Court will permit counsel to file such objections no later than twenty-one (21) days before Sentencing. The Court construes “objections” to include departure arguments. Requests for continuances shall be filed or requested no later than twenty-one (21) days before Sentencing. Strict compliance with the above is mandatory because untimely filings impede the abilities of the Probation Office and of the Court to prepare for Sentencing. Failure to meet these deadlines is grounds for sanctions. [bold original]

It’s hard to convey how impossibly aggressive this timeline is. Three months to sentencing is more common than 23 days. After Hunter pled guilty on September, for example, his sentencing was set for December 16, more than three months in the future.

As the paragraph above notes, the only way the parties could even dispute anything in the presentence report (one was drafted for Smirnov’s detention fights, but a PSR would need to test the sentencing guidelines prosecutors adopted for the plea, which recommends 48 to 72 months in prison), would be to object tomorrow. And the two sides have just over a week to get their sentencing guidelines in.

This entire plea was an effort to get Smirnov to be sentenced on (but not before) January 8.

I’m not sure what leverage prosecutors used to get Smirnov to agree to this schedule; it’s not like the 4-year proposed sentence is that generous.

Perhaps Smirnov wants what prosecutors are likely pursuing: the opportunity for prosecutors to write a very damning closing Special Counsel report before Weiss gets fired, either by Joe Biden or Donald Trump. Perhaps this is a bid to harm Joe Biden while he remains President, for depriving prosecutors of the glee of sentencing his son.

We’ll know soon enough.

Update: There’s one more reason why this rush to, uh, judgment is so curious. As noted, the plea included a fairly stiff 48-72 month sentence.

18. Defendant and the SCO-W agree that the base offense level for Count Two in the obstruction indictment is 14, pursuant to U.S.S.G. § 2J1.2(a)(2) and the base offense level for Counts One, Five and Eight is 20, pursuant to U.S.S.G. § 2T4.1(H). Defendant and the SCO-W reserve the right to argue that additional specific offense characteristics, adjustments, and departures under the Sentencing Guidelines are appropriate.

19. Defendant and the SCO-W agree that, taking into account the factors listed in 18 U.S.C. § 3553(a)(l)-(7) and the relevant sentencing guideline factors, an appropriate disposition of this case is that the Court impose a sentence of: no less than 48 months and no greater than 72 months’ imprisonment; 1 year supervised release with conditions to be fixed by the Court; $400 special assessment; $675,502 restitution and no fine. The parties also agree that the defendant is entitled to credit in both Cr. Nos. 24- 91 and 24-702 for the period of his pretrial detention since the day of his arrest and that credits that the Bureau of Prisons may allow under 18 U.S.C. § 3585(b)) may be credited against this stipulated sentence, including credit under Sentencing Guideline § 5G1.3

But according to the sentencing table, the base assessment for Smirnov’s false statement of 14 would result in a range of 15-21 months (though those ranges are almost never actually applied for obstruction). And the 20 base assessment for Smirnov’s tax evasion (for three years, as compared to Hunter’s one) would be 33-41 months, assuming they were both applied with a no criminal history category.

Those add up to 48 to 62 months, not 48 to 72 months.

No defendant would agree to these terms before a tough judge (as Otis Wright is), unless he were certain that he’d soon be pardoned. There’s not even language stipulating how much credit Smirnov would get for pleading guilty (usually 2-3 points, which might bring the range down to 49 months).

This plea deal is designed to result in a wildly overinflated sentence (as it happens, for crimes equivalent to those that Hunter Biden was convicted of), all scheduled before Joe Biden leaves office.

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Chuck Grassley Says the FBI Must Combat Sexual Misconduct But the Senate Can Whitewash It

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In a piece billed as “analysis” describing why Kash Patel likely faces little Republican opposition, the NYT’s Catie Edmondson chose to quote one after another Republican making false claims about bias from the Bureau:

  • Thom Tillis falsely claiming Patel’s nomination fulfilled Trump’s promise to “enforce our laws equally and fairly”
  • Chuck Grassley lying that the “unprecedented raid of President Trump’s home in Florida” was “to serve a warrant for records” and not conduct a search necessitated by Trump’s earlier obstruction
  • Joni Ernst imagining that Kash’s nomination would “create much-needed transparency at the F.B.I”
  • John Cornyn asserting that “no one should have to go through what President Trump went through by a partisan Department of Justice and F.B.I.,” which he falsely portrayed as a retribution tour launched by Jim Comey
  • Markwayne Mullin imagining that Kash might “actually get them focused on mission, rather than politics”

What the NYT describes but does not factually label is that most of the Republican party either parrots or truly believes Donald Trump’s manufactured claims of victimhood. But unless you describe that those claims that poor Donald Trump has been targeted are false, then you simply participate in the propaganda, blindly performing the same ritual of obeisance the Republican Senators are.

NYT quotes, but does not link, the letter in which Grassley issued his rant. Fact checking the letter (sent the day before Chris Wray announced he would resign, as Grassley demanded) might have provided a way to demonstrate the pile of false claims on which this impression of the FBI was built.

Oh sure, this particular journalist might not have had time to point out that on December 10, Alexander Smirnov answered any questions about the bribery claim he made up against Joe Biden by signing a plea deal (which the NYT wrote up yesterday, but buried), which Grassley complained about this way:

Consistent with that FBI failure, yet another glaring example of FBI’s broken promises under your leadership is its inexcusable failure to investigate bribery allegations against former Vice President Joe Biden, while strictly scrutinizing former President Trump. You’ve repeatedly claimed you would ensure the FBI does justice, “free of fear, favor, or partisan influence.”25 The FBI under your watch, however, had possession of incriminating information against President Biden for three years until I exposed the existence of the record outlining those allegations, but did nothing to investigate it.26 This record, known as an FD-1023, documented allegations of bribery between and among then-Vice President Biden, Hunter Biden, and Ukrainian officials.27 The FBI confidential human source (CHS) behind this FD-1023 was on the FBI’s payroll during the Obama administration, paid hundreds of thousands of dollars, was given permission to violate the law, and the information he provided was used in prosecutions. The FBI called this CHS “highly credible,” and Deputy Director Abbate publicly testified in response to the FBI’s refusal to remove obstructive redactions from that document that “[w]e often redact documents to protect sources and methods…the document was redacted to protect the source as everyone knows, and this is a question of life and death, potentially.” 28 Then after the FD-1023 was made public – which didn’t include the source’s name – DOJ not only publicly named him, but indicted him, calling into question the truthfulness of Deputy Director Abbate’s testimony and his refusal to be transparent.29 Still, to-date, the DOJ and FBI have neither answered whether they investigated the substance of the FD-1023, nor have they provided an explanation for any effort undertaken to obtain the financial records and other pieces of evidence referenced within the document. This sounds a lot like Director Comey’s leadership of the FBI, which was nothing short of shameful.

As I noted on the Senate floor on February 27, 2024, if a highly regarded source had alleged President Trump accepted a bribe, the FBI would pursue this information without keeping it stored away in one of its dusty closets for three years.30

Even before Smirnov’s plea agreement, though, there was plenty in the indictment (like reference to all the travel records that disprove Smirnov’s claims) that not just debunk Grassley’s claims, but make clear that the scandal here was that Scott Brady falsely insinuated to Congress that Smirnov’s travel records corroborated his claims, when they did the opposite.

There’s a far, far bigger problem though: Grassley’s claims about how FBI would respond to a claim of bribery if one implicated Trump are ridiculous.

When FBI (in reality, the decisions here were repeatedly made by DOJ, not FBI, which returning SJC Chair Grassley should be expected to know) got credible claims Trump had been paid by Egyptian spooks, first Robert Mueller (probably Rod Rosenstein), then Bill Barr prevented investigators from obtaining the financial records to pursue the case, a version of which story NYT published in August.

There’s the tip that — the NYT described — the Italians gave Barr and John Durham in 2019 about “suspicious financial dealings related to Mr. Trump,” a detail Durham chose to exclude from his final report.

There’s the $2 billion investment that Saudis made with Jared Kushner after Trump’s son-in-law finished his nepotistic service in the White House; as the NYT laid out, even the Saudis had doubts that Kushner had the expertise to invest that money. A NYT follow-up showed that Kushner’s firm has pocketed $112 million in fees without showing any profit from investments. Democrats have called for a Special Counsel to investigate that, but the Special Counsel-happy Merrick Garland has not done so.

And since the election, a Chinese national whom the SEC has accused of fraud, Justin Sun, effectively just sent Donald Trump $18 million (here’s a less direct NYT story on the how cryptocurrency creates real opportunity for corruption). Where’s your call for fairness, Chuck?

But there were alternative ways to debunk Grassley’s lies other than pointing to the six NYT stories that disproved his claims that FBI ignored a bribery allegation about Biden but chased them with Trump. Consider his most justified complaint, the one with which he begins his rant: The FBI has not explained whether it has pursued allegations of sexual misconduct within its own ranks fairly.

One of the most egregious examples is the FBI’s failure to provide basic information I requested more than two years ago related to the FBI’s ongoing mishandling of sexual harassment claims made by the FBI’s female employees. This request was not pulled out of a hat. It was based on credible whistleblower disclosures alleging hundreds of FBI employees had retired or resigned to avoid accountability for sexual misconduct. 5 Whistleblowers also alleged the FBI had disciplined senior officials less severely than their subordinates for this misconduct.6 In November 2022, I released internal FBI documents corroborating these disclosures.7 I and my staff ever since have asked repeatedly for information sufficient to determine how FBI handled these serious claims and how widespread the problem really is. The FBI, for its part, told the media it would provide the information to me.8 You personally told me at a December 5, 2023, Judiciary Committee hearing, when I confronted you with the FBI’s blatant inaction, that you would check with your team and then follow up with me.9 Your Deputy Director, Paul Abbate, also publicly stated the FBI is serious about removing officials for sexual misconduct. 10 After a year since you made that pledge, over three years since Deputy Director Abbate’s public comments, and after many more requests to FBI to provide this information, neither of you have followed up or followed through. This inexcusable delay and obstruction by you and Deputy Director Abbate has prevented Congress and the Judiciary Committee from addressing the shocking sexual misconduct at the FBI. This is a promise made and broken, on an issue of utmost importance.

Chuck Grassley says FBI’s failure to deal with credible claims of sexual misconduct is “an issue of utmost importance.”

Huh.

Grassley has not yet weighed in on the nominations of Pete Hegseth, Linda McMahon, or Kimberly Guilfoyle — all of whom have been implicated in sexual harassment or assault, but his comments about RFK Jr thus far have focused on, “educating him about agriculture,” rather than the assault of a nanny RFK admitted to. Other Senators, though, have suggested that Hegseth’s accusers should not enjoy the same protections that Grassley has fiercely defended for FBI whistleblowers, and have brushed off how Hegseth’s accuser could testify publicly given the nondisclosure agreement he paid her to sign.

More curiously, when he was asked about the sexual misconduct allegations against Matt Gaetz, Grassley falsely claimed his committee, “did a very thorough job following up on every accusation made against (Supreme Court) Justice Kavanaugh and nothing ever materialized.” Grassley said that after Sheldon Whitehouse issued a report showing that the FBI had forwarded all tips to the White House, rather than chasing them down.

On instructions from the White House, the FBI did not investigate thousands of tips that came in through the FBI’s tip line. Instead, all tips related to Kavanaugh were forwarded to the White House without investigation. If anything, the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information.

Whitehouse’s report describing the whitewash FBI did quotes now-debunked claims Grassley made about the thoroughness of the investigation several times.

“These uncorroborated accusations have been unequivocally and repeatedly rejected by Judge Kavanaugh, and neither the Judiciary Committee nor the FBI could locate any third parties who can attest to any of the allegations.”

[snip]

Then-Chairman Grassley said that the FBI “decided” which individuals to contact,98 that the FBI’s investigation was being conducted “in accordance with the agency’s standard operating procedures,” that “the career public servants and professionals at the FBI know what they’re doing and how best to conduct a background investigation,” and that the FBI’s investigation “should be carried out independent of political or partisan considerations.”

If you want to talk about FBI’s inadequate response to sexual misconduct allegations, then surely its whitewash of allegations against Brett Kavanaugh should be included? Want to complain about the FBI? Complain about how they deprived you, Chuck Grassley, of treating misconduct claims against Brett Kavanaugh as “an issue of utmost importance.”

But doing so would expose Grassley’s crass double standard, refusing to exercise the same due diligence with sexual misconduct allegations that, he complains, the FBI has not done in his own job, exercising advice and consent with Donald Trump’s nominees.

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