Bombshell “New[s]:” Jack Smith DID Consult about Timing before Adopting Post-SCOTUS Path

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After I wrote this post laying out that Elie Honig was not only wrong about Jack Smith’s immunity briefing, but that it was very likely DOJ had decided not to take certain steps in August because of the election, I thought about sending the post to Jack Goldsmith, because he tends to make claims about Jack Smith violating DOJ guidelines with little understanding of the facts.

Oops. Too late.

Whereas Honig dedicated just one paragraph to asserting that the problem here lay in “new” disclosures,

The immediate takeaway lies in the revelations contained in Smith’s oversize brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice-President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.

Goldsmith repeated his claim that there were “new” disclosures in Jack Smith’s immunity filing four times, starting in the lead paragraph.

Last week a judge unsealed a 165-page legal brief with damaging new revelations about President Donald Trump’s efforts to overturn the 2020 presidential election.

[snip]

The brief he filed last week sought to show that the election prosecution can continue despite the Supreme Court’s immunity ruling. It laid out the government’s case against Mr. Trump with what many media reports described as “bombshell” new details about his wrongdoing. The filing is in clear tension with the Justice Department’s 60-day rule, which the department inspector general has described as a “longstanding department practice of delaying overt investigative steps or disclosures that could impact an election” within 60 days of an election. However, the “rule” is unwritten and, as the inspector general made clear, has an uncertain scope.

[snip]

Perhaps the department thinks the new disclosures are marginal and won’t affect the election, or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.

[snip]

Because it didn’t need to disclose the new details now, and because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy.

New new new new.

Bombshell!

I’ll note, I was not among the allegedly “many media reports” that declared I had found “‘bombshell’ new details.” Nor was Brandi Buchman, in her new gig at HuffPo. Nor were Politico’s Kyle Cheney and Josh Gerstein. While a subhed of the WaPo story on the brief promised “new” details, the story itself describes that we knew most of this before.

Much of the evidence against Trump in the case had already become public, either through previous filings, news reports or an extensive congressional investigation into the events of Jan. 6.

Tellingly, while NYT devoted a section of their four takeaways piece to “new” evidence, they specifically said none of this was “game-changing.”

The prosecutor revealed new evidence.

The brief contained far more detail than the indictment and included many specific allegations that were not previously part of the public record of the events leading up to the attack on the Capitol by a mob of Trump supporters on Jan. 6, 2021.

None of the new details were game-changing revelations, but they add further texture to the available history. For example, part of the brief focuses on a social media post that Mr. Trump sent on the afternoon of the attack on the Capitol, telling supporters that Vice President Mike Pence had let them all down.

Mr. Trump was sitting alone in the dining room off the Oval Office at the time. According to the brief, forensic data shows he was using the Twitter app on his phone and watching Fox News. Fox had just interviewed a man who was frustrated that Mr. Pence was not blocking the certification and then reported that a police officer may have been injured and the protesters had breached the Capitol.

Mr. Trump posted to Twitter that Mr. Pence had lacked the “courage” to do what was right. The mob became enraged at the vice president, and the Secret Service took him to a secure location. An aide to Mr. Trump rushed in to alert him to the peril Mr. Pence was in, but Mr. Trump looked at the aide and said only, “So what?” according to the brief. [my emphasis]

And much of this isn’t new.

We learned prosecutors were going to rely on forensic data from an expert notice submitted in December. The original indictment revealed that Trump was alone in his dining room when he sent the Tweet targeting Mike Pence. The superseding indictment added to the existing description in the original indictment that Trump was “watch[ing] events unfold” that his TV was showing “live coverage.” If you couldn’t already guess that meant he was watching Fox News, the January 6 Committee told us that in hearings and their final report. The actual content shown on Fox News at that moment is new to court filings, but it is publicly available. The Tweet itself, of course, has been discussed in detail starting from Trump’s impeachment. The Nick Luna comment, “So what?”, is new, but simply a better sourced version of Cassidy Hutchinson’s far more damning hearsay testimony of Mark Meadows telling Pat Cipollone that Trump thought Pence “deserves it” even as his supporters chanted “hang Mike Pence.”

The CNN piece that Honig linked to substantiate his claim this was new described that the filing provided “fullest picture yet of [Jack Smith’s] 2020 election case,” not that these were bombshells. It described “new” details to include:

Trump’s frayed relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol; and conversations with family members and others where the then-president was fighting his loss to Joe Biden.

Those details of Trump’s phone usage — as I noted above — were actually covered in earlier filings and even the indictments. The one new attribution to a conversation with Trump’s family members — the “fight like hell” claim — is important mostly because it echoed the very public exhortation in the January 6 speech we all saw four years ago. And virtually all the references in the brief about Trump’s frayed relationship with Pence are parallel sourced to Mike Pence’s book, published years ago.

What Goldsmith cites instead of the NYT, where his op-ed was published (which, many people complained, didn’t play up the brief enough), was this ABC story. It promises stuff that is new, but then lists a bunch of stuff we knew already.

Special counsel Jack Smith has outlined new details of former President Donald Trump and his allies’ sweeping and “increasingly desperate” efforts to overturn his 2020 election loss, in a blockbuster court filing Wednesday aimed at defending Smith’s prosecution of Trump following the Supreme Court’s July immunity ruling.

Trump intentionally lied to the public, state election officials, and his own vice president in an effort to cling to power after losing the election, while privately describing some of the claims of election fraud as “crazy,” prosecutors alleged in the 165-page filing.

And it doesn’t substantiate its claims that this stuff is new.

For example, the immunity filing explains how prosecutors know that Trump called Sidney Powell “crazy:” after Tucker Carlson ripped her to shreds, Trump let Dan Scavino and P7 — who may be Hope Hicks — listen to a conversation with Powell on speakerphone while he mocked her. That he called her crazy was included in the original indictment’s description of Powell.

One other thing some blow-ins to this story claimed was new — Mike Roman’s instruction to “Make them riot” — was also something already revealed in a December filing.

What Honig and Goldsmith are all worked up about is not new news, but editors who, trying to hype stories about this filing, felt the need to oversell the amount of new news in it.

Their concern arises out of click-bait, not the substance of the immunity filing itself.

And from that, Goldsmith scolds that Smith should have justified filing this brief in response to an order from Judge Chutkan.

[T]he department has not publicly justified its actions in the election prosecution, and its failure to do so in this highest-of-stakes context is a mistake.

Only, even Goldsmith’s claim that the department didn’t justify its actions is not entirely accurate.

Jack Smith hasn’t told us what internal DOJ deliberations were. But he did publicly reveal that before he did anything in the wake of the SCOTUS remand, he spent most of a month “consult[ing] with other Department of Justice components” regarding DOJ “rules, regulations … and policies” about “the most appropriate schedule” moving forward.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

DOJ is never going to reveal these deliberations (and Jack Goldsmith knows that better than most, given the number of far more important internal deliberations involving Goldsmith himself, dating to two decades ago, that we’ve never been allowed to and won’t ever be allowed to see).

But they did tell us they engaged in them. Jack Smith literally told us that he was spending weeks consulting about how to comply with DOJ policies regarding timing even before he superseded the indictment.

Only that detail — the one that they keep harping about — appears to be news to Honig and Goldsmith.

So chalk this up to yet another instance where the people complaining about what Jack Smith did, instead, only reveal they don’t know what Jack Smith did.

Update: Trump submitted, under seal, another request not to have any evidence released before the election. It cites both Honig and Goldsmith. Neither, of course, address the point Trump claims to be making.

President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2

2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.

Trump’s deadline to submit objections to Jack Smith’s proposed redactions is today at 5PM ET. Last time, when Trump made no substantive suggestions, Judge Chutkan released the file.

All Hell Is Going to Break Loose: Maybe Jack Smith Did Precisely What Elie Honig Claims He Didn’t

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There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.

Well, now the court filings have incorporated the Willard, yet Honig seems not to have noticed (but then, he has never exhibited much awareness of what’s actually in court filings).

More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.

That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.

Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.

He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.

The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.

9-85.500 Actions that May Have an Impact on an Election

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.

But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.

Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.

The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.

First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.

Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?

It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.

The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.

A still more obvious thing missing from the immunity filing is the Proud Boys.

Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]

But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.

To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.

In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484

But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.

Unless you were holding them in reserve.

The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.

In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]

Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.

The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.

[seven lines redacted]

The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]

As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.

They’re both just “persons.”

At least in substitutions used in this filing.

Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.

Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.

  1. October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
  2. November 13: “Trump just fired.”
  3. December 13: Bannon resumes daily contact.
  4. December 14: Alternate electors. J6C
  5. January 2: “The Vice President’s role is not “ministerial.” J6C
  6. January 2: Trump wanted Pence briefed by Eastman immediately.
  7. January 4: Pre-Pence Willard Hotel meeting, from which Rudy calls Trump.
  8. January 4: Post-Pence Willard Hotel meeting.
  9. January 5: “Fuck his lawyer.”
  10. January 5: Call with Trump before “All hell is going to break loose.” J6C

Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).

One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.

The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.

Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.

Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.

[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”

So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).

But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.

The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376

That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.

The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.

Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.

But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.

Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.

Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.

These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.

Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.

If we get that far.

From the Willard to Danbury Correctional: Steve Bannon Allegedly Joins the Conspiracy

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One of Danbury’s Federal Correctional Institution’s most illustrious residents likely discovered on Wednesday that he had been promoted.

Steve Bannon is now P1, a feature player in Jack Smith’s latest description of Trump’s conspiracies to steal the election.

The initial description of Bannon in Jack Smith's immunity filing.

Bannon’s new prominence in Smith’s description has been noted by others. NYT noted it in a story on yesterday’s front page, cataloging at some length how Bannon’s described role in this has changed. WaPo noted it too, though with far less detail than NYT.

But Smith did more than simply talk about Bannon a lot.

He promoted him: right up into the group Smith says entered into a conspiracy with Trump.

A screen cap using red boxes to show that Steve Bannon, referred to as P1, is included among those referred to as “private co-conspirators.”

There are Rudy Giuliani (CC1), John Eastman (CC2), Sidney Powell (CC3), Ken Chesebro (CC5), Boris Epshteyn (CC6), and Steve Bannon (P1), listed as “private co-conspirators.” By contrast, even Mike Roman (P5), described as a co-conspirator when he was ginning up riots at Michigan’s TCF Center, is described in this introductory paragraph as an “agent,” along with Bill Stepien (P2), Justin Clark (P3), and Jason Miller (P4).

The distinction may be a legalism. The other P-labeled people mentioned in this paragraph were employed by Trump’s campaign, whereas none of the co-conspirators were. To admit the words and actions of those private lawyers and political operatives — the co-conspirators — under a hearsay exception, prosecutors need to persuade Judge Chutkan that they entered into an agreement to commit crimes together. That is, the designation may be about nothing more than making evidence readily admissible without having to call these people as witnesses at some hypothetical trial if SCOTUS ever lets Jack Smith have one.

But it must reflect a change in the way Jack Smith has come to treat Bannon over the last 14 months. The reason why Rudy and the others have “CC” labels, designating them as co-conspirators, is because they did in the original indictment. Those labels were retained with the superseding indictment to minimize confusion; even with Jeffrey Clark (formerly CC4) removed, Chesebro and Epshteyn retained their old numbers, 5 and 6.

Bannon didn’t even make it into the superseding indictment.

But he shows up in the Immunity filing at least nine times (where these incidents show up in the January 6 Report I’ve included links — a number of these details were already known).

  1. October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
  2. November 13: “Trump just fired.”
  3. December 13: Bannon resumes daily contact.
  4. December 14: Alternate electors. J6C
  5. January 2: “The Vice President’s role is not “ministerial.” J6C
  6. January 4: Pre-Pence Willard Hotel meeting, from which Rudy calls Trump.
  7. January 4: Post-Pence Willard Hotel meeting.
  8. January 5: “Fuck his lawyer.”
  9. January 5: Call with Trump before “All hell is going to break loose.” J6C

Prosecutors added a reference to Bannon’s explanation of the plan to declare victory on October 31. They described that Bannon knew, in real time, that Trump was going to fire his campaign staff and put Rudy in charge. For some reason they suggest Bannon fell out of regular contact for a month (remember that immediately after the election, Bannon — not yet pardoned out of his Build the Wall charges — threatened to put Chris Wray’s head on a pike), only to rejoin again on December 13, just as the fake elector plot was getting up and rolling. There were a number of famous comments that appeared on Bannon’s podcast, including the prediction, on January 5, that “All hell is going to break loose” on January 6.

And then there are two meetings on January 4, both before and after the effort to pressure Pence to throw out Joe Biden’s votes. In the meeting prior to that January 4 meeting with Pence, Rudy called Trump while they were meeting at the Willard. Trump was on the phone with the plotters in the Willard Hotel.

A screen cap showing that Rudy called Trump while the co-conspirators were meeting at the Willard Hotel.

The Trump conspiracy has finally reached the Willard Hotel.

To be clear, none of this means Bannon will be charged. The five remaining co-conspirators have been sitting out there for 14 months without being charged (though it doesn’t make sense to charge anyone until you ensure that Trump wouldn’t just pardon them out of their trouble, like he did the last time and already did once with Bannon).

Bannon’s inclusion as a co-conspirator may mean little more than that his communications are of some import to tell this story — perhaps his prediction that Trump would declare victory, perhaps his involvement in Trump’s decision to replace his campaign team with Rudy (remember that Robert Costello was involved in all this, building off the common purpose with the Hunter Biden “laptop”).

But those details could have come in via Boris Epshteyn. They’re captured in texts between the two (the delay in including Bannon could arise from a delay in reconstructing someone’s phone).

Where you’d need Bannon’s designation as a co-conspirator in particular is his prediction that, “all hell is going to break loose,” after his conversation with Trump.

Still that was all available back in August 2023, when this was first indicted. As noted, it was included in the J6C.

Which raises the question of whether Jack Smith has new information, perhaps about those two meetings at the Willard, bookending the January 4 attempt to pressure Pence. The filing describes that Rudy, Eastman, Epshteyn, and Bannon attended the meeting beforehand, from which Rudy called Trump; Rudy is not described to have attended the meeting afterwards. But that doesn’t rule out someone else attending those meetings, and some possible attendees have entered cooperation agreements in the state conspiracy cases (though Chesebro does not appear to have attended the meetings). Absent someone who attended the meetings cooperating, Smith might have little more from those meetings than business records from the Willard and calendars to prove they were all there (though he did get proffers from Rudy and Epshteyn).

The Federal conspiracy charges against Donald Trump have finally arrived at the Willard Hotel, and they brought along Steve Bannon as a co-conspirator.

Update: Added the screencap showing that Rudy called Trump while the co-conspirators were meeting at the Willard Hotel before the Pence meeting.

The September 26 Brief We’ll Get in the Trump January 6 Case

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As I laid out in this thread, Judge Tanya Chutkan has set a deadline of September 26 for Jack Smith’s team to write a brief explaining how the superseding indictment against Trump consists exclusively of private conduct. From news coverage (Anna Bower and Roger Parloff did a typically good write-up of the hearing), it wasn’t entirely clear to me what that brief would entail.

Here’s how Thomas Windom described it in Thursday’s hearing:

MR. WINDOM: So what would our brief and what would our approach look like? What we anticipate filing in an opening brief is a comprehensive discussion and description of both pled and unpled facts. What this would do would be to set the stage so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required.

THE COURT: Your proposal mentions the Government’s briefing would include a proffer about unpled categories of evidence. You just mentioned that. Can you be a little more specific — or is that what you’re getting to? — about what that would look like? I mean, are you talking about not just — not the evidence itself, obviously, but the form it would take, proffered by — in written form? What are we talking about?

MR. WINDOM: Sure. So our initial view on it is this. We didn’t want to get ahead of the Court to lay anything specifically out.

But here’s what we are — what we were thinking and what we wanted to discuss with the Court: We were thinking a comprehensive brief where we would set forth the facts. What we would — that part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its determinations.

We also in that brief, in addition to the facts, we would set forth for the Court why we believe that the conduct that is in the brief is private in nature and is not subject to immunity; and then with respect to the allegations in the superseding indictment involving the vice president, that the Supreme Court specifically talked about with respect to a presumption of immunity, why we believe that that presumption of immunity is rebutted.

We would — the benefit of us going first, which is what we are asking for, is that we would have everything in one place. The defense would know what the landscape looks like, as would the Court. And then we think that that would create a cleaner docket both for your determinations and also for any appellate court to review your determinations.

THE COURT: All right. So at this point, you wouldn’t anticipate proffering any actual evidence. It would be written submissions. And then, should I feel that I need further evidence, we would discuss that. Is that what you’re talking about?

MR. WINDOM: That’s right, your Honor.

Particularly given Windom’s reference to grand jury transcripts, that raised the question of how much of these “substantial number of exhibits” we’d get to see. The answer, per Windom, is that the existing protective order would govern.

THE COURT: How much of that information do you anticipate is going to be under seal?

MR. WINDOM: So that’s a good question. We don’t know the specific answer to that.

But I do know this: A year ago, we spent a considerable amount of time going through a protective order and making sure it could stand time. Paragraphs 11 and 12 specifically deal with this situation the defense counsel has raised. It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.

We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.

Here’s the operative language from the Protective Order.

11. The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.

12. Any filing under seal must be accompanied by a motion for leave to file under seal as required by Local Rule of Criminal Procedure 49(f)(6)(i), as well as a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Effectively, then, Windom imagines that many of the exhibits would be submitted under seal, and there would be a fight about what gets released publicly, perhaps not unlike the process that has unfolded before Judge Cannon.

But Judge Chutkan would have the final say.

Trump Will Have to Defend His Attempt to Assassinate Mike Pence Before the Election

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Judge Chutkan has issued her scheduling order for the next developments in Trump’s January 6 trial.

Rather than scheduling Trump’s frivolous attempt to challenge Jack Smith’s Special Counsel appointment first, Chutkan will instead deal with immunity first, with all briefing due a week before the election.

September 19, 2024: Defendant’s Reply briefs in support of his Motion to Compel, ECF No. 167, and Motion for an Order Regarding Scope of the Prosecution Team, ECF No. 166-1. The Reply briefs shall also identify any specific evidence related to Presidential immunity that Defendant believes the Government has improperly withheld.

September 26, 2024: The Government shall file an Opening Brief on Presidential Immunity.

October 3, 2024: Defendant’s Supplement to his Motion to Dismiss Based on Statutory Grounds, ECF No. 114.

October 17, 2024: Defendant’s Response and Renewed Motion to Dismiss Based on Presidential Immunity.

October 17, 2024: The Government’s Response to Trump’s Motion to Dismiss Based on Statutory Grounds.

October 24, 2024: Defendant’s Request for Leave to File a Motion to Dismiss Based on the Appointments and Appropriations Clauses.

October 29, 2024: The Government’s Reply and Opposition. After briefing, the court will determine whether further proceedings are necessary.

October 31, 2024: The Government’s Opposition to renewed challenge to Special Counsel.

November 7, 2024: Defendant’s Reply on renewed challenge to Special Counsel.

It’s not yet clear how much of the briefing on immunity will be unsealed.

But this defeats Trump’s bid to delay explaining how almost getting his Vice President assassinated was an official act until after the election.

Trump Wants to Hide His Attempt to Assassinate Mike Pence from Voters

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In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

Jack Smith doesn’t propose a schedule (thereby avoiding any claim he’s trying to push pre-election developments), but he’s ready to get this process started right away. He does want Judge Chutkan to make determinations regarding immunity first and foremost. He cites Chutkan’s own order and SCOTUS’ remand order to justify that.

The Court has indicated that it intends to conduct its determinations related to immunity first and foremost. See, e.g., ECF No. 197 (Order denying without prejudice the defendant’s motion to dismiss the previous indictment on statutory grounds and specifying that he “may file a renewed motion once all issues of immunity have been resolved”). The Government agrees with this approach, both because the Supreme Court directed such a process on remand, see Trump v. United States, 144 S. Ct. 2312, 2340 (2024), and because the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal citations omitted).

Trump, by contrast, wants to stall any consideration of immunity until December 13 by first litigating a challenge to Jack Smith’s appointment that Aileen Cannon approved but which conflicts with several binding precedents in the DC Circuit (and which Trump pointedly didn’t try before Chutkan last fall, when he submitted all his other motions to dismiss).

Trump-appointed Judge Mark Scarsi rejected Hunter Biden’s similar attempt to challenge David Weiss’ Special Counsel appointment in the wake of Judge Cannon’s ruling as untimely, and there’s good reason to believe that would be the likely outcome here, even before getting to the binding DC Circuit precedent.

You need look no further than Trump’s description of what he wants to challenge in the superseding indictment to understand why Trump wants to delay this fight until December: As I predicted, he wants to have the Mike Pence allegations thrown out.

In addition, while continuing to strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune—including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors—President Trump may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence, along with other potential key threshold motions. Namely, in Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” (emphasis added)).

To be sure, he’s not wrong to challenge the inclusion of the Pence allegations. Nor is he wrong in his view of how central Pence is to this indictment (though he overstates when he claims it would moot all else; the fake electors plot might survive the excision of the Mike Pence allegations).

As I explained, Justice Roberts raised the conversations with Pence specifically. But as I also explained, that is one of the shrewd things Jack Smith did in superseding the indictment: he stripped out all other things that obviously fit under Roberts’ guidelines, leaving only Trump’s efforts to get Pence to throw out the votes of 81 million Biden voters and when Pence refused, Trump’s action — a tweet — that almost got Pence assassinated.

Trump may well succeed in arguing that he can’t be prohibited from asking Pence to overturn the results of the election so the two of them could remain in power because any such prohibition would chill the normal conversations between Presidents and their Vice Presidents. That is simply the absurd logical result of Roberts’ opinion: that a President can order his Vice President to steal an election because any prohibition on doing so would chill the authority of the President.

But if Jack Smith has his way, Trump will have to make that argument — once, probably in a court filing in October — before voters go to the polls in November.

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

ABC Treats Kamala’s 21-Year Old Misstatement about Prosecutions as News but Not Trump’s Daily Lies about His Own Crimes

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As the mainstream press continues to soil itself like toddlers over Kamala Harris’ interview tonight, I was going to use this CNN piece — suggesting questions about how the VP’s stance on immigration has changed — as an example of the complete collapse of any sense of newsworthiness.

After all, Donald Trump has still never been asked, much less answered, how he plans to fulfill his promise of mass deportations, something that might be impossible without dramatic escalation of police force against both citizens and not. He hasn’t been asked how he’ll pay for it, which would be prohibitively expensive. He hasn’t asked who will do the jobs, such as in agriculture, that keep America’s cost of living relatively low. He hasn’t been asked if he’ll separate families, especially marriages empowered by Obergefell.

Trump hasn’t been asked the most basic questions about one of his only policy promises.

CNN’s Eva McKend has really good questions about immigration policy. In another place and time they’d be totally valid questions!

But given the failure by the entire press corps to ask Trump about a policy promise that would serve as — and assuredly is intended to serve as — a bridge to fascism, it is the height of irresponsibility to waste time on the shifts in Harris’ immigration views, because they don’t matter in the face of Trump’s promises to sic cops on American families in pursuit of brown people.

So that was going to be my exemplar of how completely the press corps has lost any sense of proportionality regarding what counts as news.

Then I read this piece from ABC, which makes a big deal out of the fact that in 2003 — 21 years ago!!! — some Kamala Harris campaign fliers said she prosecuted over a hundred cases, when she should have said she was involved in that many.

But during a debate held in the runup to Election Day 2003 on KGO Radio, Harris’ then-opponent, veteran criminal defense attorney Bill Fazio, accused her of misleading voters about her record as a prosecutor and deputy district attorney in California’s Alameda County.

“How many cases have you tried? Can you tell us how many serious felonies you have tried? Can you tell us one?” Fazio asked Harris, according to audio ABC News obtained of the debate, which also included then-current San Francisco District Attorney Terence Hallinan.

“I’ve tried about 50 cases, Mr. Fazio, and it’s about leadership,” Harris responded.

Fazio then pointed out campaign literature where Harris had been claiming a more extensive prosecutorial record.

“Ms. Harris, why does your information, which is still published, say that you tried hundreds of serious felonies? I think that’s misleading. I think that’s disingenuous. I think that shows that you are incapable of leadership and you’re not to be trusted,” Fazio said. “You continue to put out information which says you have tried hundreds of serious felonies.”

[snip]

Asked this week about Harris’ prosecutorial experience before she became district attorney, a spokesperson for Harris’ presidential campaign used slightly different language to describe her record — saying she was “involved in” hundreds of cases.

This is insane!! Having prosecuted 50 felonies is a lot, for an entire career! To make a stink about this 21-year old misstatement would be unbelievable on its face.

But it is just contemptible, given the amount of lies Donald Trump tells about his own crimes that ABC lets go unmentioned.

Just as one example, check out how ABC covered Donald Trump’s August 8 Mar-a-Lago presser. In that presser, Trump seems to have falsely claimed he did oversee a peaceful transfer of power (the only lie NYT called out in its coverage of this presser). He lied about the four people who were killed that day. He lied about his role in sending his mob to the Capitol. He lied about what those mobsters chanting “Hang Mike Pence” were seeking to do. He lied about how Jan6 defendants are being treated. [All emphasis here and elsewhere my own.]

QUESTION: Mr. President, you were – you just said that it was a peaceful transfer of power last time when you left office. You didn’t (inaudible) …

TRUMP: What – what’s your question?

QUESTION: My question is you can’t (inaudible) the last time it was a peaceful transfer of power when you left office?

The second one (ph) …

TRUMP: No, I think the people that – if you look at January 6th, which a lot of people aren’t talking about very much, I think those people were treated very harshly when you compare them to other things that took place in this country where a lot of people were killed. Nobody was killed on January 6th.

But I think that the people of January 6th were treated very unfairly. And they – where – they were there to complain not through me. They were there to complain about an election. And, you know, it’s very interesting. The biggest crowd I’ve ever spoken to, and I said peacefully and patriotically, which nobody wants to say, but I said peacefully and patriotically.

Trump made a misleading crack meant to suggest that Arthur Engoron undervalued Mar-a-Lago.

TRUMP: It’s a hard room because it’s very big, if you don’t …

(LAUGHTER)

… this is worth $18 million.

Trump lied that the prosecutions against him — all of them — are politically motivated. He lied that “they” have weaponized government against him. He lied that the Florida case, in which he was investigated for the same crime as Joe Biden, was weaponized. He falsely claimed that the NY cases are controlled by DOJ.

TRUMP: Because other people have done far bigger things in see a ban [ph] and sure, it’s politically motivated. I think it’s a horrible thing they did. Look, they’ve weaponized government against me. Look at the Florida case. It was a totally weaponized case. All of these cases.

By the way, the New York cases are totally controlled out of the Department of Justice. They sent their top person to the various places. They went to the AG’s office, got that one going. Then he went to the DA’s office, got that one going, ran through it.

No, no, this is all politics, and it’s a disgrace. Never happened in this country. It’s very common that it happens, but not in our country. It happens in banana republics and third-world countries, and that’s what we’re becoming.

Trump claimed he wouldn’t have wanted to put Hillary in jail when, on his orders, DOJ investigated the Clinton Foundation for the entirety of his term and then John Durham tried to trump up conspiracy charges against her (and did bring a frivolous case against her campaign lawyer). Trump also lied about calming, rather than stoking, the “Lock her up” chants at rallies. Trump lied about what files Hillary destroyed after receiving a subpoena (and who destroyed them).

TRUMP: I don’t think it’s appropriate for me to talk about it. I think it’s a tragic story, if you want to know the truth. And I felt that with Hillary Clinton, too. You know, with Hillary Clinton, I could have done things to her that would have made your head spin. I thought it was a very bad thing, take the wife of a President of the United States and put her in jail. And then I see the way they treat me. That’s the way it goes.

But I was very protective of her. Nobody would understand that, but I was. I think my people understand it. They used to say “lock her up, lock her up,” and I’d say “just relax, please.” We won the election. I think it would be very – I think – I think it would have been horrible for our country if I – and we had her between the hammering of all of the files.

And don’t forget, she got a subpoena from the United States Congress, and then after getting the subpoena, she destroyed everything that she was supposed to get. I – I – I could – it – I didn’t think – I thought it was so bad to take her and put her in jail, the wife of a President of the United States. And then when it’s my turn, nobody thinks that way. I thought it was a very terrible thing. And she did a lot of very bad things. I’ll tell you what, she was – she was pretty evil.

But in terms of the country and in terms of unifying the country, bringing it back, to have taken her and to have put her in jail – and I think you know the things as well as I do. They were some pretty bad acts that she did.

Depending on how you count, that’s around twelve lies in one hour-long press conference. They’re proof of Trump’s abuse of the presidency, his refusal to cooperate with an investigation like Joe Biden had, his lifelong habits of fraud, and his assault on democracy.

And these are only the lies about his own (and his eponymous corporation’s) crimes! They don’t include the lies about abortion or gun laws and shootings, other lies about the law he told in that presser.

And yet ABC covered none of those lies, focusing instead on Trump’s false claims about crowd size.

Crowd size.

These aren’t the only lies about justice Trump routinely tells. He routinely lies that he “won” the documents case, that he was declared innocent or that Biden was only not prosecuted because he was too old. They don’t include the lies Trump has told about the Hunter Biden case, the Russian investigation, his actual actions in the Ukraine impeachment. Trump continues to lie about whether he sexually assaulted E Jean Carroll. He lies about his Administration’s jailing of Michael Cohen to shut him up.

Then there are Trump’s renewed false claims, in the last day, about the superseding indictment against him.

Trump lies all the time. He lies about the cases against him, about his own crime. He lies with a goal: to present rule of law as a personal grievance. Those lies go to his core unfitness to be President.

And yet, aside from some good reporting (particularly from Katherine Faulders) on these crimes, ABC never bothers to fact check Donald Trump’s lies about rule of law, not even his own prosecutions.

It is the height of irresponsibility to adopt this double standard — to ignore Trump’s corruption of rule of law while chasing a campaign exaggeration made two decades ago. It was bad enough that the press corps sits there, docilely, as Trump corrupts rule of law every time he opens his mouth. But to then try to make a campaign issue about whether Kamala Harris was involved in or prosecuted 50 cases decades ago?

ABC claims that Kamala Harris made misstatements. But their own failure to report on Trump’s false claims is a far, far greater misrepresentation of the truth, and it’s a misrepresentation of the truth they repeat every day.

The Superseding Trump Indictment Is about Obstruction as Much as Immunity

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In this Xitter thread, I went through everything that had been added or removed from the superseding indictment against Trump, based on this redline. The changes include the following:

  1. Removal of everything having to do with Jeffrey Clark
  2. Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
  3. Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
  4. Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
  5. Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
  6. New language about the treatment of the electoral certificates

Altogether, the changes incorporate not just SCOTUS’ immunity decision, but also the DC Circuit’s Blassingame decision deeming actions taken as a candidate for office are private acts, and SCOTUS’ Fischer decision limiting the use of 18 USC 1512(c)(2) to evidentiary issues.

The logic of Blassingame is why Jack Smith included these paragraphs describing that Trump and Pence were acting as candidates.

1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.

[snip]

5. In furtherance of these conspiracies, the Defendant tried–but failed–to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate, who plays a ceremonial role in the January 6 certification proceeding.

As I’ve said repeatedly, it’s not clear that adopting the Blassingame rubric will work for SCOTUS, even though they did nothing to contest this rubric.

That’s because Chief Justice Roberts used Pence’s role as President of the Senate to deem his role in certification an official responsibility, thereby deeming Trump’s pressure of Pence an official act. Smith will need to rebut the presumption of immunity but also argue that using these conversations between Trump and Pence will not chill the President’s authority.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict ofInterest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

This is the most important advantage of superseding the indictment. When someone boasted to Bloomberg that Jack Smith’s purported decision not to have a mini-trial on these issues was a “win” for Trump, they envisioned that this meant there would be no media friendly election-season developments, providing a way to get through (a successful or stolen) election so future President Trump could throw the case out.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.

The decision to supersede this indictment may have turned what could have been an immediate dispute about the viability of the indictment at all into an evidentiary dispute to be managed later. We’ll find out more on Tuesday.

At the very least, Jack Smith suggests he has something viable on which to arraign Trump (and Trump’s Xitter wails treating this as a real indictment suggest he may believe that).

Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.

That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.

Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

[snip]

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]

This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.

But the other changes in this passage are all about Fischer, about showing how Trump deliberately sicced a mob on the Capitol with the goal of making it impossible to count the certifications.

After adding language from Trump’s speech (included based on the justification that the rally was paid for by private funds) in which he emphasized the certification process, Smith added other language describing how Trump’s mob disrupted the vote certification over which Pence was presiding.

Everything italicized below is new.

86d. The Defendant specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

[snip]

90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.

91. A mass of people-including individuals who had traveled to Washington and to
the Capitol at the Defendant’s direction-broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

93. At 2:13 p.m., after more than an hour of steady, violent advancement, the
crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House also was forced to recess.

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

96. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

This narrative ties the mob, particularly the storming of the Senate chamber, directly to Trump’s goal of interrupting the counting of the electoral certificates. This instrumentality was always a part of the indictment — has been part of this investigation since no later than January 5, 2022. But Roberts’ dual interventions in the January 6 prosecutions forced Smith and crime scene prosecutors working under US Attorney Matthew Graves to make it far more explicit.

A significant number of mobsters either knew the import of the certificates ahead of time, and/or heard Trump describe the goal at the Ellipse, and when they stormed the Capitol, assaulted cops, and occupied the space that the Vice President had only just evacuated, they had the goal of preventing the authentic certificates from being counted.

And Jack Smith is making this argument before Judge Chutkan even as other prosecutors are making a parallel argument before other judges.

As DOJ laid out in their filing describing how they plan to retry Matt Loganbill (who joined Alex Jones as he opened a second, eastern front on the attack on the Capitol) under the new Fischer standard, Loganbill had the goal of getting Pence to shred the envelopes as early as December 20, 2020, and after he stormed the Capitol, he headed towards the Senate where he believed they were counting the vote.

  • On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
  • On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
  • On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
  • On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

Here’s how DOJ plans to prove that the Chilcoats, Shawndale and Donald, planned to prevent the votes from being counted by occupying the Senate.

[A]t approximately 2:46 p.m., the defendants watched rioters attempt to break open windows, then entered the Capitol building itself through a broken-open door on the building’s northwest side. A cell phone video shows that, after they learned of the breach, Donald Chilcoat cautioned Shawndale Chilcoat that they should let other rioters enter first. That way, if the police deployed pepper spray, those other rioters, and not the Chilcoats, would bear the brunt of it. In other words, the defendants knew they were not welcome, and they knew their entry might be met with force. After the defendants entered the building, they traveled to the Senate Chamber – the very place where the proceeding was taking place – and joined other rioters in occupying it. There, they took photographs and remained in the chamber while other rioters searched desks belonging to the former Vice President and to Senators.

Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote. And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider. On January 4, 2021, via Facebook, a friend of Shawndale Chilcoat told her to “give Rob Portman a call and let him know what you think of him not rejecting the fraudulent votes.” Shawndale Chilcoat affirmed “just did.” Then, late on January 5 or early on January 6, Shawndale Chilcoat posted a message to Facebook saying that “[Vice President] Pence is stating he can not reject the votes.” On January 7, 2021, after the riot, Shawndale Chilcoat admitted “we were just trying to stop them from certifying the votes and didn’t know they were already gone.” On the same day, she also bragged, “[o]k so antifa is being blamed for breaking windows and storming congress. Um no, it was us I was with them and couldn’t be more proud.”

Here’s one of the most interesting things about yesterday’s superseding indictment.

The efforts to address Fischer are intertwined. While DOJ might be able to sustain some obstruction cases against rioters based on their own communications, and while Jack Smith might rescue this indictment with a focus on the effort to create fake elector certificates, Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.

Jack Smith did things (describing that Trump was in his private Dining Room, not the Oval Office, noting that he sent the threatening Tweet with no assistance, labeling the rally a privately-funded speech, labeling Trump and Pence as candidates) that increase his chances of overcoming the presumption of immunity that John Roberts invented. But a number of judges (and some juries) are going to have to buy that a handful of members of the mob stormed the Capitol, and especially the Senate, with the intent of making it impossible to count vote for Joe Biden.

Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).

DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.

They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.

If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.

If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.

Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.

But doing so would clarify the absurdity of such a ruling.

Correction: Kyle Cheney reports that this is a grand jury seated last year. It has indicted other Jan6ers and so could do any 1512 indictments that require superseding.

The Pared Down Superseding Indictment for January 6

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As I predicted in this post, Jack Smith did not wait around for a dispute before Tanya Chutkan to talk about which allegations in the January 6 indictment against Trump are and are not official acts. He superseded the existing indictment.

But Smith took the “pared down” approach NYT’s Alan Feuer imagined: The indictment takes out all reference to Jeffrey Clark. It emphasizes throughout that Trump worked with private individuals to try to steal the election.

That said, it does keep the Mike Pence allegations in the indictment, emphasizing that those actions were exclusively about remaining in power.

Update: In his notice regarding this superseding indictment, Smith emphasized that he used an entirely new grand jury. He would have had to do that anyway — the one he had used previously expired last summer, probably over a year ago.

Today, a federal grand jury in the District of Columbia returned a superseding indictment, ECF No. 226, charging the defendant with the same criminal offenses that were charged in the original indictment. The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States, 144 S. Ct. 2312 (2024). The Government does not oppose waiver of the defendant’s appearance for arraignment on the superseding indictment. See Fed. R. Crim. P. 10(b). As this Court directed, ECF No. 197, the Government will confer with the defense and make a joint proposal, to the extent possible, regarding pretrial litigation in the status report due Friday.

But the mention of “pretrial litigation” suggests he wants to pick up where he left off.

Update: Here are the parts of my post from Saturday explaining what the logic here would be.

Now, as I suggested, even if you were doing nothing more than removing the Jeffrey Clark references, doing so would be smart in any case. Not only could Smith excise all the Jeffrey Clark materials, thereby giving Trump less surface area to attack the indictment, but he could tweak what is already there to address some of the other concerns raised by SCOTUS, for example, to clarify how candidate Trump’s reliance on fake elector certificates do not threaten Executive authorities. But minor tweaks, even the excision of the Jeffrey Clark stuff, would not require consultation with DOJ, and if Jack Smith were just excising the Jeffrey Clark stuff, he could have done that before DOJ’s election prohibition on indictments kicks in on roughly September 1.

So let’s talk about what would require consultation with DOJ, consultation requiring two full months from the immunity ruling, because it raises ways that Smith might supersede the indictment that would be a lot more interesting than simply excising the Clark stuff:

  • Consultation with the Solicitor General’s office regarding edge cases on official acts
  • Consultation with DC USAO on how to apply obstruction more generally

[snip]

Consultation with the Solicitor General’s office regarding edge cases on official acts: First, and least controversially, DOJ would consult with the Solicitor General’s office regarding any more difficult issues regarding official acts. Perhaps the most obvious of these — and one squarely raised in SCOTUS’ ruling — is the status of Mike Pence in conversations about certifying the electoral certificates. If Pence was acting exclusively in his role as President of the Senate, then Trump’s relationship to him would be as a candidate, and so under Blassingame, an unofficial act. But the Republicans on SCOTUS want to argue that some of these conversations were official acts, making Pence’s testimony inadmissible under their order. If DOJ is superseding an indictment to excise the things that need to be excised, DOJ would want the Solicitor General involved in such decisions not just because they’ll have to defend whatever stance Jack Smith adopts, but also so as to protect the equities of the Executive Branch, which DOJ traditionally guards jealously.

Consultation with DC USAO on how to apply obstruction more generally: More interestingly (and as I focused on here), if Jack Smith were to supersede the indictment against Trump, he would undoubtedly tweak the language on the two obstruction charges to squarely comply with the Fischer decision limiting it to evidentiary issues.

Since Smith got his extension, DOJ has started weighing in on a handful of crime scene cases where (unlike around 60 others) it thinks it can sustain obstruction charges under a theory that the defendant knew the import of the electoral certifications themselves and took steps to obstruct the actual counting of them.

[snip]

DOJ is making the effort of trying to sustain the obstruction charges for defendants who can’t be charged with one of several other felonies (obstructing the cops or rioting), but whose conduct — DOJ believes — should still be a felony. They’re going to have to do this with some members of the two militia conspiracies, the felony convictions on which are often the primary felonies (though DOJ used the obstruction of cops with them too).

It’s fairly easy to see how this effort has to harmonize with however Smith revamps the obstruction charges against Trump. And given the evidence that Smith was moving to include the Proud Boys in Trump’s case, that harmonization may be key to sustaining obstruction charges against the Proud Boys.

The other parts — on if Smith decided to add new charges — aren’t relevant here.

The Proud Boys’ Reliance on Telegram Didn’t Save Them, But It Thwarted Preventing the Attack

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At 8:06PM on January 4, 2021, shortly after the arrest of Enrique Tarrio, a Proud Boy named Travis instructed everyone on the Proud Boys’ Ministry of Self Defense Telegram list to “nuke everything.”

Because of the way Telegram persists on individual phones, it didn’t work. Two years later, that text was introduced as evidence against the Proud Boys to show that already on January 4, they knew they had something to hide.

Four days later, on the Ministry of Self Defense list that had replaced the first one, Aaron of the Bloody East — a senior Proud Boy in Philadelphia — announced the arrest of Proud Boy Nicholas Ochs as he landed in Hawaii (the avatars for the Proud Boys were added for the trial exhibit; only the monikers and user numbers came from Telegram itself). The conversation immediately turned to deleting two channels used to organize the Proud Boys during January 6. But because Jeremy Bertino, who had set up the chat, had already left it, the men once again struggled to cover their tracks.

Organizing on Telegram did not prevent the government from prosecuting the Proud Boys for their roles in January 6. On the contrary, those chats — complete with their boisterous efforts to delete them after every arrest — were a central part of the evidence used to prosecute Enrique Tarrio, Joe Biggs, and Ethan Nordean on sedition charges, with help from Bertino, who had flipped and who continues to cooperate in the investigation.

It started no later than Nordean’s own arrest on February 3, 2021, when Nordean’s spouse provided the FBI with the passcode to his phone, where many of these texts were still available. It continued as the FBI acquired one after another of the Proud Boys’ phones (one of the only known exceptions was Joe Biggs, whose phone the FBI never got).

A letter to Zach Rehl’s attorney from 2022 gives a sense of how the FBI had to exploit as many phones as they could, one after another, because the set of texts still available on any individual’s phone varied. Some people, like Nordean, were successful at deleting their voice notes and other attachments. Others didn’t even try.

Altogether, DOJ relied on at least 11 separate lists, as well as a slew of individual Telegram texts (as well as a number of Parler texts), at trial. In that sense, the investigation of the Proud Boys was little different than that of the Oath Keepers, who used Signal rather than Telegram for that kind of organization.

That’s important background to news of the French arrest of Pavel Durov on charges implicating (at least) child sexual exploitation, terrorism, cybersecurity, fraud, and organized crime. Authorities can still prosecute people who use Telegram to plan and organize their crimes.

But there are impediments. The cops took Tarrio’s phone when they arrested him — with those damning Telegram threads still on it — two days before the Proud Boys would lead a mob that attacked the Capitol. But it took over a year before they cracked the encryption on his phone, exploited it, and did a privilege review. Even after seizing Tarrio’s phone, then, prosecutors couldn’t prevent January 6 having decided that Tarrio posed a risk to the certification of the vote only days before the attack.

It might have been different if the Proud Boys had been considered a terrorist group (which it still is not, in significant part because of an asymmetry in US law regarding domestic and foreign extremist groups). Contrary to what a lot of coverage is reporting, the vast majority of Telegram usage is not encrypted. As far as I’m aware, none of the texts introduced at the Proud Boy trials were protected by Telegram’s hard to use encryption, not even the private texts in which Tarrio told one after another of his girlfriends of his imminent arrest.

But the encryption itself would not have saved him. On December 18, 2020 DC cop Shane Lamond did turn on Telegram’s encryption in texts he was exchanging with Tarrio, warning him about both the investigation into his role in burning a BLM flag (the crime for which Tarrio would be arrested on January 4), as well as observations about public Proud Boys statements in advance of January 6.

To contact Tarrio, the Defendant used a chat on Telegram with the highest level of encryption available. The Defendant then asked Tarrio if he had called in the anonymous tip. Tarrio responded “I did more than that. It’s on my social media.” The Defendant told Tarrio “I’m curious to see what happens too. I will check with our CID [Criminal Investigations Division] people if they have you on video.”

But those were still available on the phones after the fact.

Even after Lamond and Tarrio set Telegram to auto-delete messages, Telegram’s functionality didn’t entirely save them.

On December 22, 2020, approximately two minutes after Tarrio sent the Defendant a screenshot of a message he received from an MPD detective assigned to the BLM Banner Burning Investigation through Telegram, the Defendant changed the settings of his encrypted chat with Tarrio on Telegram so that future messages would delete 5 seconds after the recipient opened them.

Some of their auto-delete texts were reconstructed, especially those sent after Tarrio’s pre-trial release on the DC case.

And after Lamond called Tarrio using Telegram to warn him about the warrant for his arrest, Tarrio went to the Ministry of Self Defense thread — the same one the Proud Boys failed to delete after his arrest — and told them that his contact had just warned him of the arrest. There are texts between Lamond and Tarrio, especially from January 1 and 4, which were lost to law enforcement. But enough of their texts were preserved to substantiate obstruction charges on which Lamond will go to trial in October.

The encryption didn’t save Shane Lamond. It would probably do little for intelligence targets either — in part because the encryption may not be all that great, but also because a determined spook is going to get texts via the phones, just like the FBI did with Lamond. France certainly has the intelligence capabilities to defeat Telegram’s encryption, as does the US, both of which would be happy to share with Ukraine.

Rather, one of France’s reported complaints is that Telegram won’t cooperate with law enforcement requests. Even though all these threads via which the Proud Boys planned January 6 and the texts sent between the allegedly corrupt cop Lamond and Tarrio before December 18 were likely readily available on Telegram’s servers, even if the FBI had asked after Tarrio’s arrest, Telegram wouldn’t have provided them, at least not without a whole bunch of squawking. That also means that Telegram wouldn’t provide a whole bunch of other information that proves useful to solving crimes. In the Proud Boys case, because prosecutors couldn’t get metadata directly from Telegram, it likely required cooperating witnesses like Bertino to attribute the handles used by some of the Proud Boys to specific users (at the time, Signal did not yet have this capability, so investigators could more easily match phone numbers to users).

By comparison, prosecutors could and did serve preservation orders on Google and Facebook, which preserved a lot but by no means all relevant content, even as individual users were trying to cover their tracks just like the Proud Boys were. In response to legal process, those platforms, as well as Twitter and others (but not Signal, which doesn’t keep most of this data), provided user data, address, credit card data, and access times.

But it’s the issue of prevention for which Telegram poses the biggest concern. Telegram is the platform of choice for extremists of all ideologies, both for broadcast messaging and for more discreet threads like the ones the Proud Boys used. And in quick moving situations, like the extremist mobilization in the wake of the Southport stabbing in the UK, Telegram channels can grow to include tens of thousands before they’re even discovered. While Telegram took the rare step, in that case, of shutting down the most violent channels tied to British riots, it left many of them up.

It’s still too early to know the scope of the French investigation, beyond that it implicates both non-cooperation and slow moderation. It’s a complaint both that Telegram won’t provide information to solve crimes already committed and won’t take steps to prevent them from happening.

Two of the most important questions are whether Durov derives a material benefit from letting crime and extremism flourish on Telegram. Another is whether Durov gives the Russian government preferential access to all the channels that are otherwise difficult to access. This post provides a sense of the degree to which Durov’s likely cooperative relationship with Russia conflicts with his public claims of animosity.

There are a lot of people claiming that France is targeting Durov because Telegram is an encrypted messaging platform. While that may be a factor, the far more important one is that Telegram allows crime to flourish on its platform, and until he arrived in France, where his French citizenship will actually help France thwart any Russian attempts to help him, he was protected by regimes that similarly preferred to let certain kinds of noxious content to thrive.

Update: The French have released the possible charges. There is one charge of refusing to cooperation in criminal investigations.

They include six charges of “complicité,” what I guess is the US equivalent to aid and abetting:

  • Illegal transactions for organized crime
  • Child sexual abuse material
  • Organized dissemination of CSAM
  • Narcotics sales
  • Hacking tools
  • Organized fraud

Then there are three crimes pertaining to the provision of encryption and importation of encryption without declaration.

The most interesting — and the ones that might make this prosecution akin to those of people like Ross Ulbricht — are:

  • Association with criminals with the intent to commit crimes punishable by 5 years
  • Money laundering

I noted above that one of the big questions is whether Durov derives a material benefit from letting crime flourish on Telegram. If he’s personally involved in money laundering, he may.

Note, none of the crimes suggest an unlawful relationship with Russia (though some of those encryption crimes may originally have been targeted towards spooks).