January 6 Insurrection Archives

The Zombie Case against Trump’s Indicted Co-Conspirators

November 26, 2024/25 Comments/in 2024 Presidential Election, Hunter Biden, January 6 Insurrection /by emptywheel

Jack Smith signed the motion to dismiss the January 6 case against Trump, but his appellate lawyer, James Pearce, (digitally) signed the parallel request before the 11th Circuit.

Who knows whether that means anything.

But now that Smith has committed to sustaining the appeal of Judge Aileen Cannon’s decision as it applies to Walt Nauta and Carlos De Oliveira, someone needs to take over the case and write the reply, which is due on December 2. Pearce has done the primary work for all Jack Smith’s appeals and so could do so here — or, perhaps Jack Smith will close up shop, along with Pearce, and let Solicitor General Elizabeth Prelogar take over before she’s replaced by John Sauer in January.

One way or another, there’s likely to be a transfer of the Zombie case back to DOJ, where it will be suffocated with pillows never to be heard from again.

The decision to sustain the Nauta and De Oliveira case just long enough for Trump to shut down next year has certain ramifications I only touched in passing in this discussion with Harry Litman about what we might get in a report from Jack Smith, which is probably more accessible than this post about what declination decisions we might see (transcript here).

First, they’ve got due process rights. Meaning, you can’t say anything in a report that might endanger their ability to get a fair trial (a trial they’ll never face, of course). That may lead to redactions of the sort we saw in the original Mueller Report but which were re-released under FOIA. Or it may lead prosecutors to gloss certain things — such as the obstruction — in the report. In the chat with Litman, I noted that ABC reported that Walt Nauta and Trump went back to Mar-a-Lago after hiding documents from the FBI, which might make the report. But if it appears in there, it would need to be presented in such a way to protect Nauta’s due process rights.

It’s possible, even, that until the appeal, DOJ would avoid describing the investigative steps taken in the documents case after Smith was appointed in November 2022. The logic of Cannon’s opinion basically wiped out all that investigative work. Poof. Though it’s possible that Julie Edelstein and David Raskin — who left Smith’s team in October — have done something to recreate some of the work, such as the declassification that had happened in advance of an imagined Florida trial.

Meanwhile, sustaining the case against Nauta and De Oliveira creates an interesting dilemma for DOJ that may have repercussions for others and Trump’s DOJ going forward: how to get rid of the appeal. He would pay least political capital by just dismissing the appeal. But that would reflect a DOJ stance that Jack Smith was unconstitutionally appointed — something that might bind DOJ going forward (as if Pam Bondi won’t just pick Trumpy US Attorneys to do her dirty work like Bill Barr did) — though that may be unavoidable if Trump’s Solicitor General and Deputy Attorney General had both argued that Smith was unconstitutionally appointed, as they have.

But that would go some way to arguing that David Weiss’ appointment as Special Counsel is unconstitutional as well. It might give Hunter Biden, if his father doesn’t pardon him (and Alexander Smirnov, if he is convicted next month and not pardoned) cause to enjoin Weiss’ prosecutors from publishing a report; it would also make Hunter’s appeal of his charges far easier, especially in Los Angeles, where Weiss is not the confirmed US Attorney.

Which may be why (as both Litman and I suggested) Trump might want to pardon Hunter — to give the air of magnanimity to unintended consequences of his efforts to kill the case against him. To say nothing of the transparency into Trump’s first term that Hunter might get if he succeeds with his other appeals.

The case against Nauta and De Oliveira will be dead, one way or another, in two months. But until then, it’ll exist as a Zombie, having potentially unanticipated consequences.

Update: The full Jack Smith team has submitted its reply brief.

“Without Prejudice:” Jack Smith Moves to Dismiss the DC Case

November 25, 2024/96 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Jack Smith has moved to dismiss the DC case against Donald Trump. OLC has found that the categorical prohibition on the federal indictment of a sitting President means DOJ cannot sustain the indictment against Trump.

OLC concluded that its 2000 Opinion’s “categorical” prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office. 2000 OLC Opinion at 254.1 Accordingly, the Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice. Cf. id. at 255 (“immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment”). This outcome is not based on the merits or strength of the case against the defendant

But OLC does not require dismissing the indictment with prejudice.

That means if Congress were to decide to impeach Trump on these issues, he could again be charged (through January 6, 2026).

Though it’s not yet clear whether Smith will dismiss the appeal against Walt Nauta and Carlos De Oliveira in Florida, this clears the way for Smith to file a report on what he found.

Update: In the 11th Circuit, Smith has moved to dismiss the appeal without prejudice against Trump but not his two co-defendants.

Update: Judge Chutkan grants Jack Smith’s request. How is notable: she focuses on defending the decision to dismiss without prejudice.

Federal Rule of Criminal Procedure 48(a) provides that before trial, the Government “may, with leave of court, dismiss an indictment.” The “‘principal object of the “leave of court” requirement’ has been understood to be a narrow one—‘to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.’” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)).1 Here, Defendant consents to the dismissal, Motion at 1, and there is no indication that the dismissal is “part of a scheme of ‘prosecutorial harassment’” or otherwise improper, Fokker Servs. B.V., 818 F.3d at 742 (quoting Rinaldi, 434 U.S. at 29 n.15). Rather, the Government explains that it seeks dismissal pursuant to Department of Justice policy and precedent. Motion at 2–6. The court will therefore grant the Government leave to dismiss this case.

Dismissal without prejudice is appropriate here. When a prosecutor moves to dismiss an indictment without prejudice, “there is a strong presumption in favor” of that course. United States v. Florian, 765 F. Supp. 2d 32, 34 (D.D.C. 2011). A court may override the presumption only when dismissal without prejudice “would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.” Id. at 35 (quoting United States v. Poindexter, 719 F. Supp. 6, 10 (D.D.C. 1989)). As already noted, there is no indication of prosecutorial harassment or other impropriety underlying the Motion, and therefore no basis for overriding the presumption—and Defendant does not ask the court to do so. See Motion at 1. Dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office. Id. at 6 (citing Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 225 (Oct. 16, 2000)).

Some courts in this district have advanced a broader view of the “leave of court” requirement. For instance, one concluded that “a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not ‘satisfied that the reasons advanced for the proposed dismissal are substantial’; or (2) she finds that the prosecutor has otherwise ‘abused his discretion.’” United States v. Flynn, 507 F. Supp. 3d 116, 130 (D.D.C. 2020) (quoting United States v. Ammidown, 497 F.2d 615, 620–22 (D.C. Cir. 1973)). Even under that broader interpretation, however, the court finds no reason to deny leave here.

WaPo Enthusiastically Joins Trump’s Attack on Rule of Law

November 23, 2024/42 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

One reason why Trump managed to win the election in spite of his four felony prosecutions is because self-imagined journalists never fact-checked him when he falsely claimed his prosecutions — all of them — were partisan witch hunts.

This article, from WaPo, is a remarkable example.

It confirms what was already clear — that Trump will attempt to fire everyone who worked on his own criminal prosecutions — and adds that Trump also intends to use DOJ to investigate his claims of voter fraud that his own DOJ already debunked in late 2020. It describes this fascist project to politicize DOJ as evidence of his “intention to dramatically shake up the status quo in Washington.”

The post notes that Trump, “lost to Joe Biden but continues to insist [the election] was stolen from him in key battlegrounds,” and describes that, “neither the president-elect nor his allies have ever provided evidence to prove their claims of voter fraud.”

But it doesn’t mention that Bill Barr’s DOJ already did investigate Trump’s claims of election fraud. And although Josh Dawsey is bylined, the story mentions none of Dawsey’s several stories on contractors whom Trump hired in 2020, who looked for — but could not find — any evidence to back these claims (one two three).

More tellingly, WaPo’s four journalists don’t bother to correct Karoline Leavitt’s objectively false claim that, “President Trump won the election in a landslide,” a claim that could be easily debunked by pointing out that Trump won’t break 50% of the popular vote and won by less than 2%.

They just let Leavitt lie.

Worse still, they repeated Trump’s claims of grievance over and over, saying only that it is a frequent claim, not a false one.

[1] a Trump spokeswoman echoed the president-elect’s frequent claim that the Justice Department cases against him were politically motivated.

“President Trump campaigned on firing rogue bureaucrats who have [2] engaged in the illegal weaponization of our American justice system, and the American people can expect he will deliver on that promise,” press secretary Karoline Leavitt said in a statement. “One of the many reasons that President Trump won the election in a landslide is Americans are sick and tired of seeing their tax dollars spent on [3] targeting the Biden-Harris Administration’s political enemies rather than going after [a] real violent criminals in our streets.”

[snip]

And he has [4] maintained from the start that Smith’s investigations into his efforts to reverse his defeat — as well as his alleged mishandling of classified documents after he left the White House — are examples of the weaponization of government against him that must be avenged.

[snip]

“For too long, the partisan Department of Justice [5] has been weaponized against me and other Republicans,” Trump wrote when announcing his new pick, longtime ally Pam Bondi, in a post on Truth Social. “Not anymore. Pam will refocus the DOJ to its intended purpose of fighting Crime, [b] and Making America Safe Again.”

There are plenty of ways people who chose to engage in journalism could debunk these false claims: to point out that Joe Biden was also investigated for retaining classified documents, to describe that a former Trump US Attorney, Robert Hur, found characteristics that distinguished Trump’s case from Biden’s, to explain what those distinctions were — Trump’s year-long effort to hide documents from DOJ. Regarding January 6, a journalist might explain that hundreds of other people were charged with the same main crime — obstructing the vote certification — as Trump was, but in his case the fraudulent certificates made the evidence even stronger.

At the very least, describe — in detail! — what Trump was charged with! WaPo chooses not to do that.

On the claims of politicization, the laziest reporter might note at least that Joe Biden’s own son was prosecuted on two coasts, along with three high profile Democrats — Bob Menendez, Henry Cuellar, and Eric Adams.

Trump’s claim that Biden’s DOJ targeted Republicans is laughable, and yet four self-imagined journalists repeated the claim as if it were true.

Trump’s claims that Biden’s DOJ didn’t prosecute violent criminals in the streets bears special focus, since hundreds of the January 6ers — people Trump has suggested he’ll pardon — are just that: people convicted of violently assaulting cops.

And his claim that Pam Bondi will fight crime as if Merrick Garland did not? For fuck sake, people, mention that crime rates came down under Biden.

WaPo packages up all this unrebutted propaganda as a process story. Twelve paragraphs in, it addresses the question of whether Trump will be able to fire career employees. In ¶15, it describes the make-up of Jack Smith’s team.

But it’s all buried under dumb repetition of Trump’s attack on rule of law, as if the attack were true. WaPo just couldn’t be bothered to conduct the least little act of journalism on that point, and so simply repeated Trump’s false claims of grievance with no correction.

And as such, the article itself becomes part of precisely the outrageous abuse it describes: the creation of a false myth of grievance by burying (literally in Trump’s case and figuratively in the case of four people calling themselves journalists) the reality about rule of law.

Special Counsel Reports Include Declination Decisions

November 18, 2024/48 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

In this appearance on BradCast last week, I scoffed a bit at this Devlin Barrett/Glenn Thrush piece. The headline news — that Jack Smith will step down before Trump comes in — was fairly obvious from Smith’s request for three weeks to figure out what to do. The focus on Smith’s obligatory report is something I made clear a week earlier. To be sure, the piece relies on interviews to confirm that Smith (and his staff) will resign, that only outside decisions could thwart their effort to finish up, that Smith has encouraged those who don’t have to stick around to move on.

It’s this section, which aside from the assertion that most of the classification vetting has already been done, is not attributed to the anonymous sources for the story (but which could rely on background sources), that I find odd.

Justice Department regulations require a special counsel’s report to explain why the prosecutor decided to file the charges they did, and why they decided not to file any other charges they considered.

But like much of Mr. Smith’s work involving Mr. Trump, this step is fraught with both technical and practical challenges that could make the report significantly different — and shorter — from the lengthy tomes produced by other recent special counsels. It also unlikely to contain much in the way of new or revelatory disclosures.

Mr. Smith, who has been the subject of round-the-clock protection after receiving death threats since taking over, has already described much of the evidence and legal theories behind the election obstruction indictment. Since he filed two separate and lengthy indictments last year against Mr. Trump, he has supplemented that record with scores of court filings elaborating on the allegations.

One potential wrinkle for the filing and release of Mr. Smith’s report is that it may have to undergo a careful review by U.S. intelligence agencies for any classified information. That can be a lengthy process. Intelligence agencies took weeks to review Mr. Hur’s report.

But in the case of Mr. Smith’s final report, most of that vetting has already been done, so officials expect that step to take little time.

It correctly describes that Special Counsel regulations require them to report on why they filed particular charges … but also why they didn’t file other charges, their declination decisions, but then suggests we’ve already seen what there is to see.

Jack Smith’s declination decisions are one place where a report might get interesting. Just as one example, the search warrant for Mar-a-Lago listed three suspected crimes: 18 USC 793(e) (retaining national defense information) and 18 USC 1519 (concealing a document to obstruct an investigation), both of which were charged. But it also listed 18 USC 2071 (removal of documents). That crime was not charged, even though the indictment describes that Trump personally oversaw the process of packing up boxes (that a witness described Trump knew) containing classified documents to send to Mar-a-Lago.

In January 2021, as he was preparing to leave the White House, TRUMP and his White House staff, including NAUTA, packed items, including some of TRUMP’s boxes. TRUMP was personally involved in this process. TRUMP caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.

Since the warrant was made public, there has been a pretty heated discussion about 2071, not least because Republicans claimed that Smith had considered charging it, which carries a light three year maximum sentence but also disqualifies someone from holding office again, as a way to disqualify Trump from running for President.

There are at least two obvious explanations for why Smith didn’t charge 2071. Perhaps it would be impossible to charge a President under 2071, given that until noon on January 20, 2021, he had authority to do whatever he wanted with those classified documents, sending them off while he was still President. Or perhaps Smith thought he could have charged it, but first needed the testimony of one of the key people involved in the packing process: Walt Nauta.

The reasons behind that prosecutorial decision not to charge Trump for intentionally taking classified documents with him are interesting for another reason. Among the classified documents discovered at Mar-a-Lago that weren’t charged is a “compilation” that mixed communications with “a book author, a religious leader, and a pollster” with some kind of classified information.

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

These documents are nowhere near as sensitive as the ones actually charged against Trump; prosecutors probably prioritized documents that it would be easy to convince a jury they were “national defense information” for the indictment, an explanation that also may appear in the report. But the compilation of classified information with a pollster’s message also suggest that Trump not only took classified documents home, but he used them as part of his campaign to get elected again (it would be particularly interesting if this document pertained to something like Israel).

And note NYT’s description that “most of that vetting has already been done”? In discovery communications, prosecutors have described that some of the classified documents found at Mar-a-Lago have since been declassified; for others, prosecutors would have been working on substitutions they might use in case of trial. So for less sensitive documents, prosecutors may be able to describe precisely what Trump took.

Another classified document, classified Secret, found at Mar-a-Lago but not charged is the very first classified document the FBI found, something pertaining to Emmanuel Macron and associated, in some way, with an Executive Grant of Clemency for Roger Stone stashed (unlike all the other pardon packages found in the search) in Trump’s own desk drawer. I’ll admit that, given my understanding of the Stone investigation, I’m particularly interested in this file, but here’s to hoping that prosecutors will satisfy my curiosity about the document.

There are similarly important declination decisions on the January 6 side of the investigation.

The most obvious of those is why Jack Smith never indicted any of the eight people variously treated as co-conspirators: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark (who was removed in the superseding indictment pursuant to SCOTUS’ immunity ruling), Ken Chesebro, Boris Ephsteyn, and — treated as co-conspirators in the immunity brief but not the superseding indictment — Steve Bannon and Mike Roman. It might be as simple as a decision, given the course of the Mueller investigation, to ensure that Trump couldn’t pardon these co-conspirators before charging any of them.

But prosecutors might also explain why Bannon and Roman only belatedly got included as co-conspirators. I have speculated that it may have to do with delays in exploiting the phones of Roman and Epshteyn. If that’s true in the case of Ephsteyn, those delays would likely have arisen from post-hoc privilege claims tied to Epshteyn’s claim to be Trump’s lawyer. And if that is true, it would mean Trump’s nominee for Deputy Attorney General, Todd Blanche, was the one who fought for the delay.

In any case, any discussion of Trump’s co-conspirators may prove useful to the extent that state prosecutors are able to sustain their cases against the co-conspirators.

Finally, though, there is perhaps the most important declination decision: the decision — after Congress impeached Trump and the January 6 Committee referred for prosecution — not to charge 18 USC 2383, inciting insurrection, the single charge that (per SCOTUS’ decision in the Colorado case) could have disqualified Trump from the Presidency under the Fourteenth Amendment. The reasoning here might be fairly prosaic: Perhaps Smith feared precisely the immunity challenge, tied to impeachment acquittal, that Trump launched anyway. Perhaps Smith was not able to substantiate that case until he received evidence and testimony that post-dated the delay John Roberts caused, and so could charge insurrection now, but could not have done so in August 2023, when he first indicted Trump.

If Smith were to explain why he declined that charge, however, he would — as Robert Hur did in his 388-declination report — describe the evidence that would have supported such a charge.

NYT suggests Smith’s report will be short; again, it’s not clear whether that reflects information received on background, or just speculation. Smith has had an eternity to consider the possibility Trump would be elected, and he managed to write up the 165-page immunity brief in the same three weeks he gave himself in asking for an extension until December 2.

Even assuming we’ve already seen the evidence Smith has — Smith’s decision to exclude mention of the Proud Boys and Trump’s January 6 fundraising from the immunity brief suggests there may be stuff we have not seen — the declination decisions, themselves, may provide important answers to questions about whether it ever was possible to disqualify Trump from becoming president again.

And it’s a marker in the sand. The report presumably will, at least, lay out some of the consequences of what John Roberts has wreaked. Republicans won’t care. But that lays out what they own going forward.

Boris Epshteyn’s One-Two Punch on DOJ

November 15, 2024/103 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

Politico had a detail about the Matt Gaetz selection that I’ve seen no one else pick up.

It was Boris Epshteyn’s idea.

How did we get here? That story is still coming out, but here’s what we know. As of Monday, Gaetz was not on the short list to be Trump’s choice for attorney general. But Trump wasn’t satisfied with those options, our Meridith McGraw tells Playbook.

[snip]

The Gaetz-for-AG plan came together yesterday, just hours before it was announced, Meridith tells us. It was hatched aboard Trump’s airplane en route to Washington, on which Gaetz was a passenger. A Trump official revealed more details to Playbook late last night: BORIS EPSHTEYN played a central role in the development, lobbying Trump to choose Gaetz while incoming White House chief of staff SUSIE WILES was in a different, adjacent room on the plane, apparently unaware.

Maggie and Swan have retconned that detail to describe, only, that Boris, Elon, and Susie Wiles were all on the plane, then fluffed it all into bullshit about clarity of what he wants.

Boris’ role in Trump’s apparent plan to destroy the country has gotten little notice amid the parlor games focused on when the two narcissists, Elon and Trump, will tear each other down. But his apparent role in this decision bears more notice.

After all, he’s unindicted co-conspirator 6 in the January 6 indictment. He had a central (though uncharged) role in the documents case, orchestrating parts of the plan to have Evan Corcoran do the search but have Christina Bobb do the certification. And he was or may still be under investigation, with Steve Bannon, for a cryptocurrency scheme that cheated Trump’s rubes.

His communications with now Chief of Staff designate Susie Wiles appear to have been a subject of interest for investigators — a subject tied to what a witness that is likely Eric Herschmann described as an effort to cover his own past legal exposure with a retroactive claim to have been acting as an attorney.

And the potentially belated access to the contents of his phone are what expanded the focus of the immunity brief to incorporate Bannon as an unindicted co-conspirator and Bannon’s prediction that “All Hell will break loose” part of the plot.

Donald Trump was considering actual lawyers for the role of Attorney General, but (per Marc Caputo) didn’t like them because they talked Constitution and all that.

“Everyone else looked at AG as if they were applying for a judicial appointment. They talked about their vaunted legal theories and constitutional bullshit. Gaetz was the only one who said, ‘Yeah, I’ll go over there and start cuttin’ fuckin’ heads.’”

And then, at least according to Politico, Wiles left the room and Boris convinced Trump to pick Gaetz.

After that, Trump has announced plans to install his defense team — Todd Blanche, Emil Bove, and John Sauer — as Deputy Attorney General, PADAG, and Solicitor General, respectively (note: PADAG is not a confirmed position, so Trump only announced it to make the intent crystal clear).

Now, Bove and Sauer are at least competent to the positions Trump will install them in. All three men know their way around DOJ. Blanche is less horrible than the Gaetz pick — again, if you ignore the symbolism of converting the Department of Justice into the defense firm for the President.

And he’s also Boris’ defense attorney. He was Boris’ defense attorney and then, possibly at Boris’ suggestion, added Trump as a client, creating some challenges regarding discovery.

According to Politico, a key player in Trump’s assault on the Constitution, on the Capitol, is the guy who picked Matt Gaetz to be Attorney General (or who suggested Matt Gaetz be proposed for Attorney General, creating an impossible loyalty test for the Senate).

And the competent people reporting to Gaetz are there to mount a defense.

How Garland-Whinger Ankush Khardori’s Willful Impotence Helps Trump Evade Accountability

November 11, 2024/80 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

There’s a telling quote from Greg Sargent in his description of Kamala Harris’ difficulties in convincing voters that Trump was a bad president.

Some Democrats believe that the leading pro-Harris Super PAC, Future Forward, failed to spend enough of its enormous budget on advertising early on that might have reminded voters of the horrors of the Trump presidency. That perhaps allowed him to slowly rehabilitate himself and edge up his favorable numbers while Democrats weren’t looking.

“There was a calculation among Democrats after 2020 that Trump was disqualified and wouldn’t be back,” Democratic data analyst Tom Bonier told me. “That evolved into a calculation that he would be disqualified by his legal troubles and could end up in jail. Democrats undeniably failed to disqualify him. The result was that by the time the Harris campaign started, it was too late.”

“Was disqualified … would be disqualified … failed to disqualify.”

Bonier is just one person. But the passivity he describes on the part of Democrats expecting and hoping that some magic unicorn would just make the problem of Donald Trump go away is telling. As described, Democrats as a party apparently abdicated all agency for making that case themselves until it was far too late.

It is precisely the reason I’m so impatient with the Merrick Garland whinger industry, which has flourished again since Trump’s win: because they replicate precisely the impotence that got us here. They always asked that Garland do the work, singlehandedly, of making Trump go away, without considering the political groundwork that was necessary to any successful legal case.

Take Ankush Khardori’s description of Trump’s legal impunity. After laying out that, with his election, Trump’s legal troubles will now go away, with which I mostly agree, Khardori then lays out his three culprits: Merrick Garland, Mitch McConnell, SCOTUS.

His culprits are not in temporal order; if McConnell — who had an immediate way to disqualify Trump from further office — had engaged in an impeachment effort, DOJ would have had more time to prosecute.

They’re not in order of culpability. He addresses SCOTUS’ actions in four paragraphs close to the end of his rant. He ignores how their interventions on the Colorado case and Fischer also affected DOJ’s options, and never mentions precisely how long they stalled the case: eight months, with a guarantee of more on the back end. Once you address SCOTUS’ delays and rewriting of the Constitution, it’s not clear a case could ever have been brought before an election, even ignoring how COVID stalled everything for a year, to say nothing of bringing an insurrection charge that would be (per the Colorado decision) the only thing that could disqualify Trump from office. If that’s the case, it wouldn’t matter whether Garland or a gun-toting Adam Schiff, as prosecutor, were in charge. SCOTUS’ intervention, assuming it would have been the same whether it happened in 2021 or 2022 or 2023, was decisive. Trump’s judges made a prosecution of him before the election impossible and further ruled that the only thing that could disqualify him was an insurrection charge.

Instead of focusing primarily on the main culprits, Khardori prioritizes what he imagines was Garland’s role over that of McConnell and — astonishingly — SCOTUS.

And as is typical with Garland whingers, his indictment of Garland is riddled with problems (and, as the red typeface I used to mark links to his own past pieces shows, his own bellybutton lint).

It is now clearer than ever that Garland was a highly questionable choice to serve as attorney general from the start. From the outset of the Biden presidency, it was readily apparent that Garland had little desire to investigate and potentially prosecute Trump.

The most comprehensive accounts on the matter, from investigative reporting at The Washington Post and The New York Times, strongly indicate that the Jan. 6 committee’s investigation and public hearings in 2022 effectively forced Garland to investigate Trump and eventually to appoint Smith in November of that year — nearly two years after Trump incited the riot at the Capitol.

There are many people — including many Democratic legal pundits — who have continued to defend this delay and may continue to do so, so let me be very clear: Those people are wrong.

It was clear after Trump’s loss in 2020 — even before Jan. 6 — that his conduct warranted serious legal scrutiny by the Justice Department, particularly in the area of potential financial crimes. But that probe, which could and should have been pursued by Biden’s U.S. Attorney and aspiring attorney general in Manhattan, somehow never materialized.

It was also clear — on Jan. 6 itself — that Trump may have committed criminal misconduct after his loss in 2020 that required immediate and serious attention from the Justice Department.

The formation of the Jan. 6 committee in early 2021 did nothing to change the calculus. There too, it was clear from the start that there would still need to be a criminal investigation to deliver any meaningful legal accountability for Trump.

In fact, the warning signs for where this could all end up — where the country finds itself now — were clear by late 2021, less than a year into Biden’s term. The public reporting at the time indicated (correctly, we now know) that there was no real Justice Department investigation into Trump and his inner circle at that point, even though the outlines of a criminal case against Trump — including some of the charges themselves that were eventually brought nearly two years later — were already apparent.

As a result, the Biden administration and the Garland Justice Department were running an extremely obvious risk — namely, that Trump would run for reelection and win, and that any meaningful criminal accountability for his misconduct after 2020 would literally become impossible. That, of course, has now happened. It was all eminently predictable.

Garland’s defenders over the years — including many Democratic lawyers who regularly appear on cable news — claimed that Garland and the department were simply following a standard, “bottom-up” investigative effort. Prosecutors would start with the rioters, on this theory, and then eventually get to Trump.

This never made any sense.

It did not reflect some unwritten playbook for criminal investigations. In fact, in criminal cases involving large and potentially overlapping groups of participants — as well as serious time sensitivity — good prosecutors try to get to the top as quickly as possible.

The Justice Department can — and should — have quickly pursued the rioters and Trump in parallel. The fact that many legal pundits actually defended this gross dereliction of duty — and actually argued that this was the appropriate course — continues to amaze me.

As for Garland, his legacy is now out of his control, and the early returns are not looking good.

Garland is a serious, well-intentioned and complex figure. But given all this, he may go down as one of the worst and most broadly unpopular attorney generals in American history — hated by the anti-Trump part of the country for failing to bring Trump to justice, and hated by the pro-Trump part of the country for pursuing Trump at all. I sincerely hope he provides a first-hand accounting of what happened after he too leaves office next year.

The only sources of information on the investigation Khardori cites (aside from his own posts about what he could see without looking) are a WaPo and a NYT article. From both, only Glenn Thrush, a political journalist rehabilitated to the DOJ beat, covered the Trump case closely; none covered the larger investigation.

The WaPo article, which fairly obviously relies heavily on sources from the January 6 Committee members and people who left DOJ when Garland came in, has a number of problems I’ve laid out before (one, two, three).

It missed the significance of Brandon Straka, whose “cooperation” I believe was mishandled, but had it not been, might have gotten you into the Willard in March 2021.
It focused on the Oath Keepers and almost entirely ignores the Proud Boys, and in the process misunderstands the specific role they played, the ways DOJ under Bill Barr had made their prosecution far harder, and their importance to any hypothetical insurrection charge (because they kicked off the insurrection before Trump did, a problem impeachment prosecutors faced).
It ignored the decisions DOJ made with Rudy Giuliani’s phone — which was seized with a warrant obtained on Lisa Monaco’s first day on the job — which made that content, including content J6C never got, available to DOJ starting in November 2021.
It ignored the way DOJ, in August 2021, opportunistically used the prior Deferred Prosecution Agreement of Alex Jones sidekick Owen Shroyer to arrest and exploit the phone of someone who otherwise would likely be protected under media guidelines.
It ignored the overt investigative steps against Sidney Powell taken no later than September 2021.
It ignored a subpoena that was overt in May 2022, which included people who were not immediately a focus of J6C (and so not derivative of that investigation), as well as warrants dating no later than May 2022 targeting (among others) John Eastman. Since then, thanks to Khardori’s colleagues at Politico who do cover these investigations, we’ve learned the exact date that kicked off over ten months of Executive Privilege fights to get the testimony of 14 of Trump’s closest aides: June 15, 2022, one day before J6C interviewed those same witnesses: Marc Short and Greg Jacob. Which is to say, WaPo’s timeline even of known investigative steps is off in a way that suggests DOJ was entirely derivative of J6C, which it could not have been.
Perhaps predictably, given the obvious reliance on J6C sources, it didn’t talk about how their decision to delay sharing transcripts from April until December 2022 withheld information both helpful and crucial from criminal investigators.

More importantly, WaPo focused on Steve D’Antuono’s hesitancy to turn to the fake electors, even as DOJ was pushing to do so. Which is to say that D’Antuono — someone no longer at DOJ — was the key cause for delay, not Garland.

So there are a lot of problems with the WaPo story that Khardori, if he had actually tracked the investigation or followed those of us (including Politico’s own reporters) who do, should have known.

But Khardori didn’t even need to do that to understand that the WaPo had blind spots. That’s because the NYT story describes two prongs of the investigation, started in 2021, that don’t make the WaPo. It describes that,

Garland encouraged investigators to follow the money in his first meeting with them, though that turned out to be largely a dead end (note: Garland publicly implied that investigators were following the money in October 2021).
By summer of 2021, Lisa Monaco convened a team focusing on John Eastman, Boris Epshteyn, Rudy, and Roger Stone.

The NYT story missed a lot of what I included above, too (though not the Proud Boys), but it tells a very different story about efforts to focus on people close to Trump in 2021 than the WaPo did.

In spite of the NYT description of two prongs of the investigation that started in March and summer 2021 that attempted to get directly to those in Trump’s orbit, Khardori spent four paragraphs of his complaint claiming that DOJ had exclusively tried to work their way up from rioters. That’s not what the public record shows, it’s not what NYT says happened, it’s not what public reports on the Powell subpoenas say, it’s not what Garland said in October 2021 testimony. And yet that is the basis Khardori uses to condemn Garland. Further, the NYT describes that, in his first meeting with investigators, Garland, “said he would place no restrictions on their work, even if the ‘evidence leads to Trump,'” That statement is inconsistent with most of Khardori’s first two paragraphs on Garland. The Attorney General told investigators from the start he had no problem investigating Trump. Yet Khardori still links his own past work and claims vindication, rather than confessing that, if the NYT piece he relies on is accurate, he was wrong.

Which is to say, Khardori doesn’t claim to (and shows no signs of) having reviewed how the investigation actually happened. That’s not his job, I guess, as a legal journalist. Instead, he relies on two sources, one of which partly debunks the other, as well as countering his own claim about Garland’s unwillingness to investigate and his four-paragraph argument that Garland should have pursued multiple routes to Trump but did not.

There are facts. And Khardori chooses to ignore them, clinging instead to past assertions that he falsely claims have been vindicated.

It’s the most irresponsible kind of laziness. Without having learned what really happened, Khardori concocts out of his uncertainty and frustration broad judgements that support his priors but are inconsistent with the public record. Via that invented theory to explain the scary unknown, Merrick Garland remains his primary villain, not John Roberts, not Mitch McConnell.

Poof! Thousands of clicks, each time misleading another despondent reader, encouraging helplessness.

Having made Garland his villain, he proclaims defeat.

I am, if anything, more furious than Khardori that Trump will not face legal accountability for his alleged crimes, because I know the kind of insurrectionists whose likely pardons will effectively flip patriotism on its head, valorizing Trump over country. This is a potentially irreparable blow to rule of law in the US.

But I’m not ready, as Khardori seems to be, to concede defeat. That’s because legal accountability is not the only recourse; indeed, we were never going to get legal accountability without first demanding political accountability. That’s the mistake many made: by looking passively at Merrick Garland and begging for a sparkle unicorn to make Trump go away, many failed to take steps, themselves, to hold Republicans to account for abandoning rule of law.

Consider how Khardori disempowers himself elsewhere in his column. Here’s how he describes Jack Smith’s closure of the case.

Already there is reporting suggesting that special counsel Jack Smith will leave his post and dismiss the pending cases, which is not that surprising considering that Trump pledged to fire him once back in office anyway.

He describes this as driven by Trump’s threat to fire Jack Smith, not DOJ regulations that prohibit further prosecution. He doesn’t link or consider any of the reports that lay out the obvious: by stepping down rather than waiting to get fired, Smith obliges himself to write a report. He chooses how he will go out. Admittedly, Khardori published his piece before last week’s filing that suggests we’ll have, at least, clarity by early December which, if it were the actual report, would (among other things) be early enough to hold a hearing.

That’s not going to change Trump’s win. But it provides an opportunity to lay a marker in the sand: This is what Republicans have chosen to enable going forward. This is what Republicans have chosen as a party to become.

It lays a marker for the two other villains in Khardori’s column: McConnell and the other Senate Republicans who refused to convict Trump, and John Roberts and his colleagues who vastly expanded his power without even knowing what Jack Smith had discovered.

Fresh off a big electoral victory, I doubt any will much care. But when the obvious repercussions come — when a guy who stored nuclear documents in a coat closet further compromises US security — the report and the hearing provide a marker that those who failed to stop Trump were warned and chose to do nothing (or worse, on the part of SCOTUS, chose to give him more power).

One of the only remaining possible checks on Trump’s power are the people in the Senate and SCOTUS who failed to check him on these alleged crimes before (though SCOTUS did check some of his other initiatives the first time around). We won’t soon persuade any of them to change their minds. But that doesn’t mean we stop trying — or at least laying a record of their complicity. In that path lies capitulation.

All the more so given that Roberts and his colleagues will be the villains in many more stories that have direct impact on people’s lives going forward.

Donald Trump is about to do a great deal of outrageous things at the start of his term to reverse the treatment of January 6 as a crime. The response cannot be to say, ho hum, if only that awful Merrick Garland would have yelled louder, and give up, especially not when no amount of yelling was going to change what SCOTUS did.

The response is to stop hoping for a sparkle unicorn to do this work for us. The response is to take some agency for making the case about Donald Trump. And a first step in that process is to stop blaming Garland for things — the public record shows — he didn’t do, and especially to stop blaming Garland for things that more important villains, like John Roberts, did do.

The first step to effective accountability is to identify the actual villain.

Update: Ty Cobb, when asked what he thinks about Trump’s promise to pardon the Jan6 defendants, stated, I don’t think anybody in our history has more tarnished the rule of law than Donald Trump.”

The Upcoming Pardon-Palooza

November 6, 2024/99 Comments/in 2024 Presidential Election, January 6 Insurrection /by emptywheel

Just about everyone has a story out about how Trump’s win will make most of his legal trouble go away (see Brandi Buchman, Politico, NYT).

I don’t disagree with any of this analysis. His federal cases will end shortly after January 20 (though DOJ may want to pursue the 11th Circuit Appeal to sustain the viability of Special Counsels).

But I don’t know how they will go away. After all, Jack Smith could indict everyone, so as to tell the fuller story of what Trump did. If Democrats manage to take the House, he could hand off his grand jury material between January 3 and January 20. For all we know, he’s got sealed indictments hidden somewhere, obtained during the pre-election quiet period. Or he could write a final report.

Which is why I’m more interested in the other immediate legal question: Whom he pardons as soon as he returns to office.

By pardoning the January 6 defendants who are either in prison or awaiting trial, surely including seditionists like Enrique Tarrio and Stewart Rhodes, Trump would create an army of loyal Brown Shirts ready to do his bidding again. These guys only believe in Backing the Blue if it doesn’t interfere with a coup attempt.

If Rudy Giuliani gets held in contempt for dicking around with the Ruby Freeman payments, Trump can simply pardon him out of prison again.Poof!

I expect that Trump will pardon Alexander Smirnov, who allegedly attempted to criminally frame Joe Biden in circumstances that Trump likely would like to keep quiet (not like it matters anyway because the press never showed any curiosity about how that happened).

And Trump has an incentive to pardon other corrupt grifters. I would be unsurprised if he pardoned Robert Menendez and Henry Cuellar — and the latter might have an incentive to switch parties if he were pardoned out of his trouble.

I would be shocked if Trump didn’t pardon Eric Adams, which would create an ally in New York City who controls a mob of corrupt cops and former cops.

All that said, Trump can’t pardon his co-conspirators out of their state cases (Fani Willis won reelection in Fulton County). He can’t pardon Steve Bannon out of his upcoming NY trial … though I am certain that they are plotting on a way for Bannon to avoid it.

In Trump’s first term, he pardoned his way out of his Russian trouble. He paid no price for it. It barely came up in the campaign … journalists were too busy talking about Joe Biden’s stutter.

Trump’s own impunity will do grave damage to the rule of law, however it happens.

But these pardons will turn it into a transactional form of loyalty test.

Update: I should add that Mike Davis, who will play a key role in Trump’s Administration (including, possibly, Attorney General if he could be confirmed), already taunted Jack Smith to lawyer up.

Update: Trump is also likely to pardon the guys who were prosecuted for insider trading on Truth Social.

Update: Other candidates for pardons might include Ghislaine Maxwell and Diddy.

Update: Multiple outlets are reporting that Jack Smith will wind down his two prosecutions of Trump. It seems there are multiple options to do this — the most obvious being a public report and referrals of anything else, like Mueller did. But by announcing they’re doing this, they may pre-empt Trump making demands, just like they did in August.

Trump Sold Grievance and America Liked What He Was Selling

November 6, 2024/257 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

Once Trump got everyone hooked on his grievance drug, Merrick Garland was never going to make a difference.

I have tried, over and over, to explain how the investigation into Trump and his co-conspirators proceeded. More recently, I’ve explained how you couldn’t have charged Trump with insurrection — the only thing that would have disqualified him from running — until after May 2023, and had Jack Smith done so, it would have ended up exactly where we are here, with John Roberts delaying everything until after the election.

No effort to explain the process — the two years of exploiting phones, the months of January 6 Committee delay, the ten months of privilege fights, the month Elon Musk stole, or the eight months John Roberts bought Trump — none of that has mattered, of course. People needed an explanation for their own helplessness and Merrick Garland was the sparkle pony they hoped would save them.

But nothing Merrick Garland would have done would have mattered anyway.

That’s because since January 2017, since Trump learned that Mike Flynn had been caught undermining sanctions on the phone with Sergey Kislyak, Trump has used every effort to hold him accountable as a vehicle to sell grievance.

This is the core premise of the Ball of Thread podcast I’ve been doing with LOLGOP.

Rather than being grateful when learning that FBI was investigating four of his close campaign advisors had monetized their access to him — rather than imagining himself as the victim of the men who snuck off and met with Russian spies — Trump made himself the victim of the FBI. He invented a claim he was wiretapped, and then kept inventing more and more such false claims. And then he (possibly on the advice of Paul Manafort, whose associate Oleg Deripaska funded HUMINT before the Democrats did) used the dossier as stand-in for the real Russian investigation. It wasn’t the Coffee Boy yapping him mouth that led to the investigation into those trying to monetize access, this false story tells, it was the dossier Russia filled with disinformation, a guaranteed way to discredit the investigation. Once you convince people of the lie that the FBI really did investigate a candidate based off such a flimsy dossier, it becomes easy to target all those involved, along the way gutting the Russian expertise at FBI.

Then Bill Barr came in and used the authority of the Attorney General to lie about what the investigation found; almost no media outlets have revisited the findings once it became clear that Barr didn’t even bother learning what the report said. While trying to kill Zombie Mueller — the parts of the investigation that remained after Mueller finished — Barr’s DOJ literally altered documents in an attempt to put Joe Biden at the genesis of the investigation into Donald Trump, yet another attempt to replace the actual investigation, the Coffee Boy and campaign manager and National Security Advisor and personal lawyer and rat-fucker who were found to have lied to cover up the 2016 Russian operation, with a storytale in which Democrats are the villains.

John Durham never bothered to learn what the report actually said either. Had he done so, it would have been far harder to criminalize Hillary Clinton for being a victim of a hack-and-leak operation, along the way taking out still more expertise on Russia.

And while Barr was criminalizing people, he followed Rudy’s chase for dick pics in an effort to criminalize Hunter Biden and his father.

Do you see the genius of this con, Donald Trump’s most successful reality TV show ever?

Vast swaths of America, including at least half the Supreme Court, and millions of working class voters, really believe that he — the guy who asked Russia to hack his opponent some more — was the victim.

And that’s how a billionaire grifter earns the trust of the working guy.

For the most part, the press just played along, repeating Trump’s claims of victimhood as if they were true.

It’s also the problem in thinking that if only Trump faces legal consequences, he’ll go away, he’ll be neutralized.

We saw this every time he faced justice. The first impeachment. The second one. The New York trials. Each time, his grievance became a loyalty oath. Each time, he sucked more and more Republicans into the con. Each time he made them complicit.

The hatred of and for Trump by Rule of Law is what made him strong, because he used it to — ridiculously!! — place himself into the role of the little guy, the target of those mean elites.

We’ll have decades, maybe, to understand why Trump resoundingly won yesterday. Some of it is inflation (and the unrebutted claims it is bigger than it is), which makes working people angry at the elites, people they might imagine are the same people persecuting Trump.

For many, though, it’s the appeal of vengeance.

Trump has spent nine years spinning a tale that he has reason to wreak vengeance on Rule of Law. The greatest con he ever pulled.

So even if DOJ had charged Trump, two months before Merrick Garland was confirmed (though all three of the charges people imagine would be easy — incitement, the call to Brad Raffensperger, and the fake electors plot — have been unsuccessful in other legal venues), even if DOJ had convicted Trump along with the earliest crime scene defendant in March 2022, even if Trump hadn’t used the very same means of delay he used successfully, which would have still stalled the case past yesterday’s election, it still wouldn’t have disqualified him from running.

It still would be the centerpiece of his manufactured tale of grievance.

It still would be one of the elements he uses to make working people think he’s just like them.

You will only defeat Trumpism by destroying that facade of victimhood. And you will not achieve meaningful legal victories until you do that first.

I know we all need an easy way to explain this — an easy culprit for why this happened.

But it’s not Merrick Garland, because years before he came on the scene, Trump had already convinced everyone that any attempt to hold him accountable was just another attempt by corrupt powers to take him down.

Trump sold the country on grievance and victimhood. And in the process he made half the country hate Rule of Law.

Update: This is a good summary of how Trump lures in people attracted to grievance.

The Republican Party has been the party of the Low-Trust voter for a very long time. It’s the party that wants to get rid of institutions, of any of the bonds that connect us all together. The Democratic Party is the party of institutions, the party of Good Governance. It’s the party of trusting other Americans to make good choices for you. There is very little that the Democrats can do to appeal to the Low-Trust voter, and you saw what that means for the future of our politics last night. I would go so far as to say that we’re seeing the effects of a realignment of what partisanship is. The GOP is the party of the perpetual outsider and the Low-Trust voter, the people calling for things to be torn down. The Democrats are the insiders, the institutionalists. That’s why you saw realignment of people like Liz Cheney and Vermont Governor Phil Scott, people who still think the government matters even if they disagree on how it should be doing things.

I don’t know what you can do to win back the Low-Trust voters.

[snip]

I don’t know how you build back trust in the government. Things like FEMA in disasters are supposed to be able to do that, but the post-hurricane situation in North Carolina, where outside agitators went in to try to destroy that trust, and people on the Internet went out of their way to spread lies about how the Federal government had abandoned Asheville, are just examples of how everything can be used to pop out more Low-Trust voters.

What It Would Take to Charge Donald Trump with Inciting Insurrection

November 4, 2024/76 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

I’ve been thinking a lot about Donald Trump’s second impeachment.

As we approach the election with Trump still facing a decent (though declining) chance of winning, a lot of justifiably worried people are again choosing to spend their time whinging about Merrick Garland rather than doing something constructive to help defeat Trump.

There remains a belief that it was Garland’s job — and that Garland had the power — to disqualify Trump from running this race.

A remarkable instance is Rachel Bitecofer, a PoliSci professor who has written on negative partisanship, the way in which people vote against something rather than necessarily for something.

That Bitecofer is spending days in advance of the election doing PR for John Roberts is especially inexcusable because her using partisan anger to get them to vote.

Days before the election, she falsely told voters to be mad about Merrick Garland rather than mad about John Roberts, the guy who is directly responsible for eight months of delay, or Mitch McConnell, the guy with primary responsibility for disqualifying Trump.

She’s breaking her own rule.

That’s one reason I’ve been thinking about the January 6 impeachment: because, in fact, it was McConnell’s job to disqualify Trump from running this race, and McConnell chickened out. Oh, I think there are things that might have altered the outcome of impeachment. Most notably, I think Nancy Pelosi made a mistake in not appointing Liz Cheney to the prosecution team. That would have given Cheney an earlier opportunity to play the formidable leadership role that she later played on the January 6 Committee. Cheney, as a member of GOP leadership, was witness to conversations involving Mike Johnson and Kevin McCarthy that might have tipped the decision to call witnesses. And as her support for Kamala Harris’ campaign has shown, she has the stature to persuade Republicans to put country over party.

But I’m also thinking about why that impeachment failed. Republicans offered two kinds of excuses, one procedural and one evidentiary. Procedurally, McConnell and others argued, they didn’t have the authority to impeach Trump after he left office.

It was a cop out, but — as we’ll see — one that played a role in the immunity decision.

Trump also made some evidentiary arguments against the claim that Trump incited the attack. Trump argued, for example, that rioters planned their attack in advance, and so couldn’t have been incited by Trump.

Despite going to great lengths to include irrelevant information regarding Mr. Trump’s comments dating back to August 2020 and various postings on social media, the House Managers are silent on one very chilling fact. The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse. According to investigative reports all released after January 6, 2021, “the Capitol Police, the NYPD and the FBI all had prior warning there was going to be an attack on the Capitol…” 14

14 Ian Schwartz, John Solomon: Capitol Riot Was A “planned Attack,” Can’t Blame Trump; What Did Pelosi and McConnell Know?, Real Clear Politics (Jan. 13, 2021), https://www.realclearpolitics.com/video/2021/01/13/john_solomon_capitol_riot_was_a_planned_attack_c ant_blame_trump_what_did_pelosi_mcconnell_know.html

Leaning almost entirely on the presence of provocateur John Sullivan at the riot, Trump argued that because rioters had motives other than to support Trump, Trump couldn’t have been responsible.

The real truth is that the people who criminally breached the Capitol did so of their own accord17 and for their own reasons, and they are being criminally prosecuted. 18

17 Some anti-Trump, some ani-government. See, e.g., Alicia Powe, Exclusive: “Boogaloo Boi” Leader Who Aligns with Black Lives Matter, Gateway Pundit, (Jan. 17, 2021), https://www.thegatewaypundit.com/2021/01/boogaloo-boi-leader-aligns-black-lives-matter-boastedorganizing-armed-insurrection-us-capitol/. “The goal of swarming the home of the U.S. House of Representatives and Senate is “to revel in the breach of security while mocking the defenses that protect tyrants…whether that be Trump or others.” See also Robert Mackey, John Sullivan, Who Filmed Shooting of Ashli Babbitt, The Intercept (Jan. 14, 2021), https://theintercept.com/2021/01/14/capitol-riot-john-sullivan-ashli-babbitt/ (“The rapper, who later retweeted a brief video clip of himself and Sullivan inside the Rotunda that was broadcast live on CNN, told me in an Instagram message … “I’m far from a Trump supporter…I really don’t even get into politics at all. It was an experience for me and that’s really the only reason I was there.”)

18 See, e.g., Tom Jackman, Marissa J. Lank, Jon Swaine, Man who shot video of fatal Capitol shooting is arrested, remains focus of political storm, Washington Post (Jan. 16, 2021), https://www.washingtonpost.com/nation/2021/01/16/sullivan-video-arrested/.

Trump repeatedly treated his use of the word “fight” as figurative.

Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever. The only reference to force was in taking pride in his administration’s creation of the Space Force. Mr. Trump never made any express or implied mention of weapons, the need for weapons, or anything of the sort. Instead, he simply called on those gathered to peacefully and patriotically use their voices. [emphasis original]

Most crucially, Trump noted that the attack on the Capitol started before he finished speaking.

A simple timeline of events demonstrates conclusively that the riots were not inspired by the President’s speech at the Ellipse. “The Capitol is 1.6 miles away from Ellipse Park which is near the White House. This is approximately a 30-33 minute walk. Trump began addressing the crowd at 11:58 AM and made his final remarks at 1:12 PM… Protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”20

Trump also complained that the House Democrats used news reports of the rioters’ actions, rather than legal documents.

Some of these excuses are flimsy. Most rely on a rupture between the law prohibiting incitement, which prohibits both inciting an insurrection but also “set[ting] on foot, assist[ing], or engag[ing]” in insurrection, and the holding in Brandenburg, which limited incitement to those stoking imminent illegal action. Those who claim that Trump committed a crime in plain sight would have to rebut these defenses.

In the January 6 Committee’s incitement referral, the argument shifted away from arguing that Trump incited insurrection with just his speech, focusing more on Trump’s failure to stop the riot. They argued:

Trump summoned a mob and then further provoked the already rioting mob with his Tweet targeting Mike Pence.
Two of the rioters described their actions in terms of Trump’s orders.
After the riot was already started, Trump refused to take action to protect the Capitol.
Trump told close aides that Mike Pence deserved the chants threatening to hang him.
Trump has since — starting as early as September 2022, before either sedition trial — promised to pardon the rioters.

J6C did good work, but this insurrection referral was just as thin as their obstruction one. Their citation to January 6ers still relied on press reports rather than court records. And rather than relying on Oath Keeper Kelly Meggs’ hunt for Nancy Pelosi — Meggs had been convicted of sedition a few weeks earlier — the report relies on Cleveland Meredith, who never made the insurrection. They don’t incorporate the excellent work J6C did to reconstruct how Trump ordered language targeting Mike Pence back into his speech after Pence refused the President’s entreaties to steal the election.

To be sure, at that point in December 2022, prosecutors were still working on the case that Trump incited the mob. The Proud Boy leaders’ trial — which J6C’s decision to withhold their transcripts had delayed three months — wouldn’t start until early the next month and wouldn’t conclude until May 2023. And it would take another five months, until April 2023, for DOJ to present their best evidence that Trump incited someone at his speech — Danny Rodriguez — to go attack the Capitol and tase Michael Fanone; in the wake of Fischer, however, the sentences of Rodriguez’ co-conspirators have been sharply reduced. People complain that DOJ focused on the crime scene, but before you could even consider incitement, you’d have to account for the Proud Boys and people like Rodriguez.

Before SCOTUS started rewriting the laws applying to January 6, prosecutors were prepared to show specifics about Trump’s culpability for the attack. This is how Jack Smith’s team described Trump’s responsibility for his mob almost exactly a year ago.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

A year ago, prosecutors promised to prove that Trump sent his mob to the Capitol, where many of the people Trump had told to “fight” assaulted cops. They have argued for over a year that the mob was the tool that Trump used to obstruct the vote certification.

Last month, subsequent to Fischer, Jack Smith’s argument changed a bit. He relied more on an aid and abet theory of Trump’s liability for his mob’s actions.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001).

One way or another, however, as charged Jack Smith is relying on the 18 USC 1512(c)(2) charges to tie Trump to his mob. DOJ needs to sustain at least some of the obstruction charges against crime scene defendants to make this stick. And an opinion from Beryl Howell, freeing two Proud Boys from prison based on her judgment that nothing they did at the Capitol impaired the availability or integrity of the electoral certificates, will make that harder to do.

But let’s go back to whether Merrick Garland — or DOJ prosecutors who spent 30 months showing that Trump incited people like Danny Rodriguez to go nearly murder Michael Fanone, or Jack Smith — could then prove that Trump incited an insurrection.

In August 2023, when Smith indicted Trump, it was not clear he could do that. At the least, he faced the likelihood that Trump would argue his acquittal immunized him from being charged criminally. Indeed, even though Smith didn’t charge Trump with inciting an insurrection, he nevertheless sustained that argument all the way to the Supreme Court, causing precisely the delay that people like Bitecofer blame on Garland.

But in the last year, SCOTUS did three things to clarify the issue. As noted, SCOTUS interpreted 18 USC 1512(c)(2) in a way that may imperil Smith’s ability to tie Trump to the actions the mob took via his obstruction charge.

Even before that, on March 4, a unanimous Supreme Court held that the only way Merrick Garland could disqualify Trump from taking office — and technically he still could — would be to convict him 18 USC 2383.

Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.

And thanks to Trump’s own argument about impeachment, SCOTUS has clarified that he can be charged with 18 USC 2383. Sonia Sotomayor cited Mitch McConnell’s cop out in her dissent in the impeachment case.

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

John Roberts didn’t address the cop out in his majority opinion, but he did say that if the political process of impeachment failed for whatever reason — including failing to “muster the political will to impeach” (which sure sounds like why McConnell failed) — the criminal process remained open.

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

Whatever else SCOTUS did, on July 1, 2024, almost a full year after Smith charged Trump, John Roberts clarified that Smith could charge Trump with insurrection.

If Jack Smith had charged Trump with inciting insurrection on August 2023, the case still would have gone to SCOTUS. Given what a hack John Roberts is, he might have fought harder to avoid creating the following set of rules covering Trump. But between the three opinions this year, Roberts has held that:

Obstruction may be a reach for January 6, particular a conspiracy between Trump and his mob to obstruct the vote certification
Insurrection remains good law and the law disqualifies someone from serving as President
Trump’s acquittal on insurrection does not preclude him being charged with it

The legal questions about whether Merrick Garland could disqualify Trump from running were not resolved until August 7, and the evidentiary questions will not be decided for months yet.

More importantly, those claiming that DOJ could have charged Trump right away are missing a great many steps that had to happen first:

DOJ had to prosecute all the crime scene defendants — people like Danny Rodriguez — it will use to prove that Trump incited rioters; with Rodriguez, that was held up by COVID, the evidentiary challenges, and his own legal challenges to using his own confession against him. In the case of Rodriguez’ co-conspirator, that took until April 2023.
DOJ had to resolve the Proud Boy leaders’ case to explain Trump’s relationship to the riot that kicked off even as he was still speaking, which — even though Tarrio’s phone was seized before January 6 — took until May 2023.
DOJ had to obtain Executive Privilege-waived testimony from (at a minimum) Greg Jacob (who predicted violence), Stephen Miller (to get his testimony regarding the speech), Dan Scavino (to confirm details about the Tweet targeting Pence), and Mike Pence himself. Those challenges started when DOJ subpoenaed Jacob on June 15, 2022, and necessarily proceeded by steps, until Smith obtained Pence’s testimony on April 27, 2023.
DOJ had to exploit the phone used by Trump on January 6; it’s unclear when that happened.
DOJ had to force Elon Musk’s Twitter to comply with a warrant for Trump’s Twitter account. He stalled for 23 days in January and February 2023.
DOJ would probably need the contents of Mike Roman’s phone, which show him egging on a colleague to “Make them riot” at the TCF counting center in Detroit, and Boris Epshteyn’s phone, which implicates Steve Bannon in the conspiracy and through him makes Bannon’s prediction that “All Hell is going to break loose tomorrow” part of the conspiracy. Those phones were seized in September 2022, but I have argued that Roman and Bannon’s belated treatment as conspirators may suggest it took longer than 11 months to exploit those phones (which was known to happen with Enrique Tarrio and Scott Perry’s phones).

As I keep laying out, we know how long the investigation took. We know it took 14 months before the first crime scene defendants could be tried. We know it took over a year to exploit Tarrio’s phone. We know J6C caused at least three months of delay by withholding transcripts. We know it took ten months to get privilege-waived testimony from necessary witnesses.

And we know that John Roberts chose to delay the legal questions from December 2023 until August 2024, eight months.

Merrick Garland might yet charge Trump with insurrection. He might need to, to sustain the tie between Trump and his mob. But we have a pretty clear understanding of why that didn’t happen, couldn’t have happened, before tomorrow’s election.

Secret Documents! The Ten Month Privilege Fight Whingers Claim Didn’t Happen

October 29, 2024/53 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

As always happens when people who don’t bother to check the public record get afraid, folks are complaining about Merrick Garland again, both that they didn’t notice the number of times Garland explained publicly that back in June 2021 DOJ had set up a special Election Task Force to prepare for this moment, and to complain that (they say) Garland hasn’t charged Donald Trump.

I was working on a timeline already when Politico’s two year effort to get the DC District Court to unseal grand jury proceedings bore fruit yesterday. Kyle Cheney has a story describing how the documents he liberated show both Beryl Howell and her successor as Chief Judge, James Boasberg, kept swatting back at Trump’s efforts to delay precisely because of the upcoming election.

More than 18 months ago, as Donald Trump sought to delay several high-profile witness’ testimony to a grand jury investigating his effort to subvert the 2020 election, Washington’s top federal district judge sensed a potential calamity.

“The special counsel’s investigation is moving quickly. There is an imperative that it moves quickly particularly so as not to interfere with the 2024 election cycle,” Chief Judge James Boasberg said on April 3, 2023, according to a newly unsealed transcript of the secret proceeding. “So when the former President’s pleading says that there will be a nominal impact from a delay, I think that is a vast understatement, that there would be a serious and deleterious impact from a delay.”

Boasberg’s warning in the early stages of special counsel Jack Smith’s investigation of the former president now rings prescient. A series of delays engineered by Trump, most notably an eight-month freeze while the Supreme Court considered his claim to be immune from the charges altogether, have caused the criminal proceedings to collide with the 2024 election cycle — and made it impossible for Trump to stand trial on the most serious charges he faces before Election Day.

The documents also confirm dates that, just yesterday, anti-Garland whingers claimed I made up. The fight over executive privilege started with a June 15, 2022 subpoena (probably to Greg Jacob and Marc Short) and continued through the next April, when Jack Smith — having come on after the precedents on executive privilege had already been set — got Mike Pence’s testimony on April 27.

Here’s the timeline mapped by the documents Politico liberated:

June 15, 2022: Subpoena to two officials (possibly Jacob and Short)

September 28, 2022: Order and opinion requiring testimony from two officials (possibly Jacob and Short)

October 6, 2022: Order and opinion denying stay of decision

November 19, 2022: Order and opinion requiring testimony (probably the two Pats, Cipollone and Philbin)

December 18, 2022: Order and opinion denying stay

January 23, 2022: Order and opinion extending appeal

December 9, 2022: Order and opinion requiring testimony (possibly Eric Hershmann, given description of his emails demanding written instructions)

January 10, 2023: Order and opinion denying stay

March 15, 2023: Order and opinion requiring testimony (this is the omnibus order covering eight people — see redacted list on page 2 — including Mark Meadows, Stephen Miller, and Dan Scavino)

March 25, 2023: Opinion requiring testimony, probably involving Mike Pence

April 3, 2023: Transcript of hearing, probably involving Mike Pence

April 10, 2023: Transcript of hearing, probably involving Mike Pence