with due consideration for a variety of relevant factors, including the need to foster an energy economy capable of meeting the country’s growing demand for reliable energy, the importance of marine life, impacts on ocean currents and wind patterns, effects on energy costs for Americans –- especially those who can least afford it –- and to ensure that the United States is able to maintain a robust fishing industry for future generations and provide low cost energy to its citizens.
I guess Alaskan fish and the Arctic Ocean are on their own.
Section 1. Purpose. From this day forward, the foreign policy of the United States shall champion core American interests and always put America and American citizens first.
Sec. 2. Policy. As soon as practicable, the Secretary of State shall issue guidance bringing the Department of State’s policies, programs, personnel, and operations in line with an America First foreign policy, which puts America and its interests first.
“And don’t you forget it, Little Marco!” was apparently deleted from the final version that was signed.
It’s not just Americans watching all this play out on Day One. Around the world, the heads of intelligence services of friends and foes alike were no doubt watching as well, to see what was just campaign rhetoric and what Trump actually followed through on with action. The EO that really made me sit up and take notice and most certainly caught their attention was this one:
The Executive Office of the President requires qualified and trusted personnel to execute its mandate on behalf of the American people. There is a backlog created by the Biden Administration in the processing of security clearances of individuals hired to work in the Executive Office of the President. Because of this backlog and the bureaucratic process and broken security clearance process, individuals who have not timely received the appropriate clearances are ineligible for access to the White House complex, infrastructure, and technology and are therefore unable to perform the duties for which they were hired. This is unacceptable.
Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby order:
1. The White House Counsel to provide the White House Security Office and Acting Chief Security Officer with a list of personnel that are hereby immediately granted interim Top Secret/Sensitive Compartmented Information (TS/SCI) security clearances for a period not to exceed six months; and
2. That these individuals shall be immediately granted access to the facilities and technology necessary to perform the duties of the office to which they have been hired; and
3. The White House Counsel, as my designee, may supplement this list as necessary; and
4. The White House Counsel, as my designee, shall have the authority to revoke the interim clearance of any individual as necessary.
The introduction blaming the Biden administration for screwing up the process for getting security clearances is a red herring. This EO is straight up slamming the FBI for not immediately giving clearances to his favored people back in 2017. But beyond that . . . wow.
Do you remember how things began for Trump in 2017? As I wrote in 2022, when the FBI executed a search warrant on Mar-a-Lago seeking (and finding) missing very sensitive national security documents, Trump had a history of shoddy security practices dating back to the very beginning of his first administration.
President Donald Trump disclosed highly classified information to Russia’s foreign minister about a planned Islamic State operation, two U.S. officials said on Monday, plunging the White House into another controversy just months into Trump’s short tenure in office.
The intelligence . . . was supplied by a U.S. ally in the fight against the militant group, both officials with knowledge of the situation said.
H.R. McMaster categorically denied it, and as the story unfolded over time, McMaster was lying through his teeth. The unnamed ally was later revealed to be Israel, who had a mole inside an ISIS cell. And Trump blithely blew the cover of that Israeli asset by bragging to Lavrov.
Shortly after this meeting (at which Trump also bragged about just having fired James Comey), US intelligence officials made a bold move. From CNN:
In a previously undisclosed secret mission in 2017, the United States successfully extracted from Russia one of its highest-level covert sources inside the Russian government, multiple Trump administration officials with direct knowledge told CNN.
A person directly involved in the discussions said that the removal of the Russian was driven, in part, by concerns that President Donald Trump and his administration repeatedly mishandled classified intelligence and could contribute to exposing the covert source as a spy.
The decision to carry out the extraction occurred soon after a May 2017 meeting in the Oval Office in which Trump discussed highly classified intelligence with Russian Foreign Minister Sergey Lavrov and then-Russian Ambassador to the US Sergey Kislyak. The intelligence, concerning ISIS in Syria, had been provided by Israel.
This was the opening act of the Trump presidency. From the very beginning, intelligence officers worried about how Trump handled classified information. Our intelligence officers worried, and so did the intelligence officers of our allies, as they asked themselves some version of the question “Will Trump say something or do something that will get us killed?” In a completely different way, so did the intelligence officers of our adversaries. If Trump were to rashly reveal something he learned about the capabilities of our adversaries, it could have disastrous consequences for those countries and their leaders, as the reaction to the revelation could easily spiral out of control in unforeseeable ways.
And the damage was done.
Fast forward to today, and imagine you are the head of the German Bundesnachrichendienst, the Australian Secret Intelligence Service, the Israeli Mossad, or any of the intelligence agencies with whom we regularly share intelligence. This EO says that Trump is giving a six-month waiver to the background check requirement. What could possibly go wrong?
Now imagine you are the head of the intelligence service of an unfriendly country. How large is your smile?
Just as they watched Biden’s new team in 2021, all the foreign intelligence services are watching Trump today. Yes, they are taking note of Trump indicating the US is withdrawing from the Paris Climate Agreement, and also the World Health Organization. But screwing with security clearances in the White House is on another level.
Little Secretary of State Marco is going to have a lot of work to do, trying to clean up this mess. This kind of thing will turn “America First” into “America Alone,” at least when it comes to sharing intelligence among allies.
And finally, imagine you are a senior person in the CIA, NSA, or another US intelligence agency. Imagine you are an agent in the field, passing sensitive information through your handler back to Langley. How many agents are going to ask to be pulled out? How many agents are going to “go dark” for a time, cutting off the flow of information they had been sending? And how many potential sources are going to rethink any idea of cooperating with US intelligence services, and decide to go to the Germans, the British, or others instead of the US — or decide it’s not worth cooperating with any western country?
Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days
Aileen Cannon issued her ruling withholding any sharing of Jack Smith’s Volume Two — which she extended to thirty days after all appellate proceedings.
2. Attorney General Garland or his successor(s), the Department of Justice, its officers, agents, officials, and employees, and all persons acting in active concert or participation with such individuals, are enjoined from (a) releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice, or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof
3. This Order remains in effect pending further Court order, limited as follows. No later than thirty days after full conclusion of all appellate proceedings in this action and/or any continued proceedings in this Court, whichever comes later, the parties shall submit a joint status report advising of their position on this Order, consistent with any remaining Rule 6(e) challenges or other claims or rights concerning Volume II, as permitted by law. Any disagreements between the parties can be denoted separately.
She claims the report — which would only be released in redacted form — includes non-public information (and also revealed that Trump was claiming attorney-client privilege over some of the material).
Volume II includes detailed and voluminous discovery information protected by the Rule 16(d)(1) Protective Order entered in this case [ECF No. 27]. Much of this information has not been made public in Court filings. It includes myriad references to bates-stamped information provided by the Special Counsel in discovery and subject to the protective order, including interview transcripts, search warrant materials, business records, toll records, video footage, various other records obtained pursuant to grand jury subpoena, information as to which President-Elect Trump has asserted the attorney-client privilege in motions in this proceeding [ECF No. 571 (sealed); ECF Nos. 641, 656], potential Rule 404(b) evidence, and other non-public information.
Along the way, she notes that no one from Congress has asked for the report, but that the Democratic members of HJC called for its public release.
12. With respect to the Department’s assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira.10 Finally, although the Department refers generally to “legislative interest” concerning special counsels as a basis to deny Defendants’ Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now.
Note that she ignores Kash Patel’s pending confirmation proceedings.
Cannon also makes a patently false claim — that DOJ has never released Special Counsel information prior to the conclusion of criminal proceedings.
Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant—and absent a litigation-specific reason as appropriate in the case itself— sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now.
The Mueller Report did that: It included (but redacted) information on both the Prigozhin troll case and the Roger Stone one.
Ah well. I did say that Jamie Raskin would have been better off attempting to intervene personally.
Cannon, having released the order after folks at SDFL quit, now makes much of the fact that no one from SDFL is noticed on this matter.
Update: As a reminder, I posted on some of the stuff that would appear in the report here. It sounds like the report itself has a lot more description of surveillance footage.
Trump Puts Violent Criminals Back on the Streets
Somehow, the headlines describing that Trump pardoned most of those convicted or charged for January 6 forgot to mention hundreds of them were convicted of violent assaults on cops.
The grant of clemency is actually somewhat interesting. Contrary to reports, almost everyone got pardoned. The exceptions — those whose sentences were commuted, rather than pardoned, are many of the top Oath Keepers and Proud Boys.
Stewart Rhodes
Kelly Meggs
Kenneth Harrelson
Thomas Caldwell
Jessica Watkins
Roberto Minuta
Edward Vallejo
David Moerschel
Joseph Hackett
Ethan Nordean
Joseph Biggs
Zachary Rehl
Dominic Pezzola
Jeremy Bertino
But the list is inconsistent. For example, Jeremy Bertino cooperated against the others (but has not yet been sentenced). He got a pardon with everyone else. But others (like Joshua James, who pled guilty to sedition) who cooperated are not on this list, and as a result will get a full pardon.
If this were reported correctly, it would exacerbate the anger a good number of Trump allies must feel right now: A number of Republicans, including even Mike Johnson, spoke out against pardoning the violent cop assailants. Trump ignored them all.
Ah well, I know it was a busy day, but you’d think you could get the headline right. Most of the people freed are not pre-trial defendants. They’re convicted criminals, hundreds for assaults on cops, many who pled guilty, just let out the door as one of Trump’s first acts as President.
Update: In an Executive Order prioritizing the death penalty, Trump called for the death penalty for those who succeed in murdering cops.
(b) In addition to pursuing the death penalty where possible, the Attorney General shall, where consistent with applicable law, pursue Federal jurisdiction and seek the death penalty regardless of other factors for every federal capital crime involving:
(i) The murder of a law-enforcement officer; or
Yesterday, Danny Rodriguez was freed for nearly murdering Michael Fanone.
Trump also ordered DOJ to prioritize violent crime, like those committed by hundreds of the people he freed yesterday.
Sec. 6. Prosecuting Crime to Protect Communities. (a) The Attorney General shall appropriately prioritize public safety and the prosecution of violent crime, and take all appropriate action necessary to dismantle transnational criminal activity in the United States. [my empahsis]
Meanwhile, DOJ is issuing orders to halt the prosecution of people accused of violent crime.
I further direct the Attorney General to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021. The Bureau of Prisons shall immediately implement all instructions from the Department of Justice regarding this directive. [my emphasis]
Update: Via Harry Dunn, here’s all the automated notices that Aquilino Gonell has gotten telling him that people he testified against — all of whom assaulted him — have been released.
Update: Elevating Critter7’s link to the most recent update from DC USAO on the investigation. It says 174 people were charged with using a deadly weapon or causing serious bodily harm to a cop.
Approximately 608 charged with assaulting, resisting, or impeding law enforcement agents or officers or obstructing those officers during a civil disorder, including approximately 174 defendants charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer;
[snip]
Of those who pled guilty to felonies, 172 pleaded guilty to assaulting law enforcement; 130 pleaded guilty to obstructing law enforcement during a civil disorder (riot); 69 pleaded guilty to assaulting law enforcement with a dangerous or deadly weapon; and 4 pleaded guilty to seditious conspiracy– conspiring to use force against the United States. Some of these defendants pled guilty to one or multiple felony charges related to their conduct.
Pardons
Trump ended his first term by pardoning war criminals.
Biden ended his only term by pardoning a decorated military General.
After forty-three years of faithful service in uniform to our Nation, protecting and defending the Constitution, I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights. I do not want to put my family, my friends, and those with whom I served through the resulting distraction, expense, and anxiety.
Trump pardoned people who lied to cover up his Russian exposure.
Biden pardoned a guy who tried to tell the truth to save millions of lives, while working for Trump.
Let me be perfectly clear: I have committed no crime and there are no possible grounds for any allegation or threat of criminal investigation or prosecution of me. The fact is, however, that the mere articulation of these baseless threats, and the potential that they will be acted upon, create immeasurable and intolerable distress for me and my family. For these reasons, I acknowledge and appreciate the action that President Biden has taken today on my behalf.
Update: I should have linked the post I did in December, explaining how preemptive pardons aren’t going to work (though I said then, and reiterate now, I think Milley is a special case).
Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!
In an interview with Marc Elias the other day, Dan Goldman made a number of alarming claims. He said that before the release of Jack Smith’s January 6 report, “we didn’t really know about … the extensive litigation that the Special Counsel had to go through just to get this evidence.” That is, Goldman admitted that he missed the unsealing, in October, of the very documents Jack Smith cited to describe that process (which I wrote about at the time). Goldman missed the opportunity to make a stink about this before the election.
Goldman also wondered “if Elon Musk and X, while he has owned it, has ever not cooperated in the same way [as they did in response to a warrant for Trump’s Twitter account] in a different case.” We know the answer to that: according to an opinion Chief Judge Boasberg unsealed (and first spotted by Kyle Cheney, who played a key role in liberating the Executive Privilege dispute), from January to March of last year, Xitter refused to turn over mere subscriber records in what sounds like a leak investigation.
Much later in the interview (after 19:00), Goldman said,
Volume Two of the report is going to provide a lot more information that we don’t know. The litigation in the January 6 case, including the memo outlining all of the evidence, has been so extensive that, as we see from Volume One, there really isn’t that much that we didn’t know. There was also an entire Congressional Committee that did this investigation. This has been exhaustively investigated. And yes they did get more evidence because they had grand jury power. They got more witnesses to speak than the January 6 Committee did. But we’ve known about that.
We know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others. And one of the things that has jumped out at me in that case is that in one of the filings, the Department of Justice, Special Counsel, said, that there evidence includes why Donald Trump retained the information illegally, and what he was planning to do with it. [my emphasis]
From there, Goldman went on to call for Merrick Garland to dismiss the case, which I’m not sure Garland can do without some judge going along (which was the hold up in the Mike Flynn case).
Now, as I have laid out, Jack Smith eschewed the opportunity to make new information available in Volume One of the report. For example, he didn’t explain why an investigation into Trump’s fundraising and spending ended without charges. Based on what we’ve seen in Volume One, I doubt we’d get the kinds of details Robert Hur provided in his 388-page report, describing every document that wasn’t charged and why not. I doubt we’d learn why the FBI believed there was a tie between a grant of clemency for Roger Stone and a document, classified Secret, about Emmanuel Macron, both found in Donald Trump’s own desk drawer. I doubt we’d learn why Trump compiled low-level classified information into a document with messages from a book author, a religious leader, and a pollster.
And I doubt we’d learn what Trump was planning to do with those classified documents.
I want to see the report. But I doubt it’ll include what Goldman hopes it will.
But it is also the case that we have already gotten a great deal of additional information about the investigation.
It’s not the case, for example, that “we know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others.” This filing describes that process at length, relying on both dozens of documents that Trump himself liberated and 302s from those involved, including a key White House Office of Records Management official and Mark Meadows. This section describes Meadows’ involvement, which (along with actions taken by a former Trump White House Counsel, probably Pat Philbin) led to the involvement of Biden White House Counsel Jonathan Su, the basis of Trump’s bogus claim that Biden’s White House pushed the investigation into Trump.
A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.
[snip]
Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id
[my emphasis, links added]
Exhibit D, cited to support a description of a former Trump official who warned that Trump faced criminal exposure, links to this complete 302, from someone whose potty mouth resembles Eric Herschmann. It describes a bunch of things:
How on November 21, 2021, he warned Trump to give the documents back: “Don’t give them a noble reason to indict you, because they will.”
How a “total moron” who resembles Boris Epshteyn insinuated himself with Trump with claims of voter fraud and subsequently tried to use something, perhaps claims fed to credulous reporters that he was serving a legal function, to cover for his past activities ( a document Trump himself liberated shows call records between this person resembling Epshteyn and a person resembling Chief of Staff designate Susie Wiles).
A February 2022 call in which someone resembling Tom Fitton told Trump he didn’t have to send documents back because of Fitton’s “Clinton Socks” ruling,
A prediction that Walt Nauta would be pardoned if he were charged with lying to the FBI.
But it also describes an extended description of someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.
Another dispute — about whether Jay Bratt threatened to retaliate against Stanley Woodward if he didn’t get Walt Nauta to cooperate — includes a long discussion about Kash’s testimony. It revealed how Kash tried to delay compliance with a grand jury subpoena indefinitely by hiring a lawyer already busy defending a January 6 seditionist, and when Kash did first testify, the aspiring FBI Director pled the Fifth repeatedly.
On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.
On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).
Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]
This is the same kind of extended discussion of the delays that Trump and his flunkies created that Goldman claimed, incorrectly, first became available in Volume One of Smith’s report. And it (plus details of Tim Parlatore’s efforts to stall ongoing searches) has been public since April.
Other disputes provided a bunch more information, including pictures, of where and how Trump stored the documents he withheld, including one of this box, in which Trump was storing a document classified Formerly Restricted (that is, a document pertaining to nuclear weapons), along with nine other documents, underneath a Christmas pillow and some bubble wrap (I annotated the photo to show that the documents charged in Counts 12 through 21 were found in it).
Here are discussions of what was hidden under the bubble wrap.
A passage in the 193-page 302 transcript from Chamberlain Harris (focusing on how she scanned documents including sensitive White House schedules) describes that the door to the storage closet had only the kind of lock you’d find in a residential bathroom — a pinhole they’d open with a tiny flat screwdriver.
Person 10 [Harris]: They used to unlock it for me, because you could lock it from the inside.
Mr. Thakur: Okay. This is obviously after a lock was placed there, they would unlock it for you?
Person 10: No, this was before.
Mr. Thakur: Okay. So are you talking about a lock to another door, or?
Person 10: It’s a door with a pinhole in it.
Mr. Thakur: A door with a pinhole?
Person 10: Like, I don’t know, a circle doorknob?
SA 41: Kind of like what you would find on residential door inside of a home? So it might have a lock like that one on one side of it then other side, rather than an actual place for a key, it’s sort of like a —
Person 10: Yeah.
SA 41: — very tiny screwdriver?
Person 10: Um-hmm.
SA 51: I see. But that was only on the inside of the door. So you — reasonably couldn’t lock it from the outside unless they used that little pin to reengage the lock from the outside?
In other words, there’s far, far more that got released as part of litigation in the documents case than the January 6 case.
And Dan Goldman, whose job it is to oversee such investigations, seemingly knows about none of that: Not the description of how the aspiring FBI Director stalled the investigation. Not the document claiming that the “declassify everything” claim Kash first made was a lie. And not the description of the back-and-forth with NARA that Goldman says he wants.
It’s all there in the docket. And has been (for the most part) since April.
If you want to know how Democrats failed to make more of a political case against Trump during the election, you can start with the fact that Dan Goldman — one of the Democrats’ most forceful voices on rule of law, a former TV personality, and a member of the House Judiciary Committee — knows almost nothing about what was made public in either of the federal cases against Donald Trump and as a result did little to make a big deal of that before the election.
I gave a tentative description of what it means to be an individual here, including speculation about mechanisms. In this post, I will add some detail on mechanisms, and try to sharpen up the notion of individuality.
More on mechanisms
In his book The Evolution of Agency, Michael Tomasello describes self-monitoring as a feedback loop. We set a goal, then form a plan to reach the goal, and self-monitor to see how well the plan is working. Setting goals and making plans can also be seen as feedback loops. We consider possibilities,, consider their ramifications, and choose. Self-monitoring systems can be used to rank and to modify goals. The process of setting goals also seems close to the neuronal firing I discussed in the linked post.
That description suggests that our brains operate with nested and linked feedback loops. Years ago I read Gödel, Escher, Bach: An Eternal Golden Braid by Douglas Hofstadter. There are lengthy discussions of Bach fugues, Escher’s astonishing prints, and Gödel’s theorems. It left me with a strong sense that our neuronal structures use recursion to formulate plans.
In math, a recursive function is a series of calculations using a single equation. The value of the equation is first calculated using a seed. Next the equation is calculated again, using the result of the first calculation. This process continues until the result of two consecutive iterations is the same, or until the value gets too large. The Mandelbrot Set is reached by such a function. The calculations start with a simple equation, and each point in the plane is defined by whether the calculations converge or grow to infinity.
We can compare Tomasello’s feedback loops to Hofstadter’s recursion. The crucial point for our purposes is that small changes in the initial conditions of both might (or might not) produce radically different outcomes.
There are, I think, limits to the amount of variation in human brains. We have physical limitations at every level of our existence, and presumably that’s true of our brain activity. From birth we train our brains to do the things we need to do to survive. That strengthens certain neural activity and weakens the possibility of other, different thoughts and actions. This comment by community member PeaceRme gives an excellent description of the impact of domestic violence on people’s thought processes.
Tomasello says social norms play a large role in determining our behaviors. We are likely to try to conform our actions and our thinking to the norms of our group. When a person’s brain produces actions that are too far outside the range our society thinks is normal, we consider the person sick and take action to protect ourselves from them, maybe even to try to heal them.
Of course, this is all rank speculation. I enjoy the speculation; it’s fun to think about things you don’t fully understand. It’s delightful when things you’ve read at different times and for different reasons seem to fit together.
A closer look at individuality
Several commenters point out that people show individuality in their personal lives, so what’s my point. This comment by community member Eschscholzia is an excellent example. Another way to see this is to look at random bios on Bluesky. People describe themselves in terms of their interests, favorite sports teams, or basic political stances. These are indeed facets of individuality.
When I started this series, I was thinking that the question was something like: what part of your persona consists of choices you made after due consideration, and what part are habits you learned without conscious choice. For example, I have thought a lot about why I support democracy. On the other hand, I never thought about why I don’t like celery. I just don’t like it so there. I have given at least some thought to almost all of my political views. I give very little thought to choosing sports teams.
I think some things are more important than others. Democracy is more important than celery. The things that establish the conditions under which we all live are more important than the activities that give us pleasure. So, democracy is more important than my singing career.
I’ve been trying to read The Human Condition (1956) by Hannah Arendt. Shortly after I started it, I read a discussion of the book in The Stanford Encyclopedia of Philosophy to get an overview of the book.
Arendt thinks we have lost something important in the current era, something she sees in the past. This is from the linked article.
For Arendt modernity is characterized by the loss of the world, by which she means the restriction or elimination of the public sphere of action and speech in favor of the private world of introspection and the private pursuit of economic interests. …
Snip
Arendt articulates her conception of modernity around a number of key features: these are world alienation .… World alienation refers to the loss of an intersubjectively constituted world of experience and action by means of which we establish our self-identity and an adequate sense of reality.
Arendt describes the active life as consisting of three parts — labor, work, and action. Labor is the things we do to keep ourselves functioning, sleeping, bathing, eating. Work is the things we do to produce goods and services necessary or useful in our daily lives. Action is, in essence, our participation in public life. There we use our rational skills in politics, poetry, the other arts, In the process make ourselves, our true selves, known to others, and, I think, indirectly to ourselves.
Arendt thinks that action is the most important aspect of our existence. As to politics, she thinks the ancient Greeks had the power to make joint decisions about crucial matters, from war to the rules that make society better.
She thinks the rise of totalitarian states, the rise of huge bureaucracies, and a change in our relation to work have changed us. We focus on material goods and our groups of friends and family, and we forego the power to plan for our future as a species.
I think this is right. Our highest and best calling is to contribute our thinking and our actions to making a society that will be better for us, all of us, and our children, all of our children. Of course that isn’t our sole goal, we want and need to attend to all our abilities, including the ability to experience pleasure.
Democracy gives us the opportunity to do both. We should consider our individuality to consist of our power of reason, our experience, and all our personal qualities, those we display in our family life, and among our friends. All democracy asks of us is that we use that individuality to form a shared intersubjective conception of reality, to identify our problems, and to devise solutions. We have the tools. We just need the will.
On the Misguided Tactical Conversations about Volume Two of the Jack Smith Report
Like everyone else, I badly want to see Volume Two of the Jack Smith report. If it were a fulsome report, it might give us explanations for the kinds of documents Trump hid in his bathroom, it might explain why there was a grant of clemency to Roger Stone with some tie to a Secret document about Emmanuel Macron in Donald Trump’s desk drawer, and it might reveal more about Kash Patel’s efforts to help Trump lie about the documents. It might even describe what investigators might have learned if Walt Nauta had cooperated.
Given the ways that Jack Smith pulled his punches in Volume One, however, I’m far less optimistic the report is as expansive as it could have been if it had adopted Robert Hur’s approach to declination decisions. It’s more likely the report would offer explanations for why Smith charged the case in SDFL and why he didn’t charge 18 USC 2071 — both of which would be useful for those who don’t understand those issues, but still wildly unfulfilling.
If Volume One is any indication, Smith did not use his report to get out previously unknown details.
Plus, I’m not sure what good it would do anyway. The most interesting response to Volume One, in my opinion, was seeing a lot of the same pundits who had complained that Jack Smith hadn’t released more information publicly making it clear they didn’t realize that most of the factual discussion was cited directly to the immunity brief Smith fought to release before the election, in October. Thanks for proving my point that you weren’t paying attention to the stuff that was getting released! Not to mention the Garland whingers who, in their misreading of the Jack Smith report, confessed they had never been reading the public documentation about how the investigation proceeded and weren’t going to before using it to attack Garland. You all failed to make something of this investigation when it could have mattered. It’s not clear how you’ll do better with Volume Two.
I think the House Judiciary Committee letter calling on Merrick Garland to release the report — something I want too! — by dismissing the case against Nauta and Carlos De Oliveira is the same kind of misguided intervention. Particularly given DOJ’s emphasis in court filings that Jamie Raskin has a constitutional entitlement to review the document in his function as Ranking Member of HJC, just like Dick Durbin has a heightened interest given his duty to advise and consent to the Kash Patel confirmation.
I’m no genius on criminal procedure, but I simply don’t understand how this would work. DOJ can’t just dismiss the case. They have to have to dismiss it somewhere in court, just like Bill Barr tried with Mike Flynn. I’m not even sure where you would do that, because there’s not currently a pending case. There’s an appeal of the complete dismissal of the case in the 11th Circuit, where you could dismiss the appeal. And there’s Aileen Cannon’s courtroom, where the legal status of the case is that everything that happened after November 18, 2022, after Jack Smith was appointed, is unconstitutional. If Cannon’s ruling holds, then arguably even writing the report was unconstitutional (which is why it was dumb, in my opinion, not to have written a two-part Volume Two, breaking out the stuff (to include the Kash Patel interview) that happened before Smith was appointed. Aileen Cannon is not going to let you dismiss the case, I promise you.
There’s something being missed in this discussion that’s worth pondering. It’s not Merrick Garland who made the decision to withhold Volume Two until Trump destroys the remaining case against Nauta and De Oliveira. It was Jack Smith who recommended that course of action.
Because Volume Two discusses the conduct of Mr. Trump’s alleged co-conspirators in the Classified Documents Case, Waltine Nauta and Carlos De Oliveira, consistent with Department policy, Volume Two should not be publicly released while their case remains pending.
I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing.
Given what we saw in Volume One, there are multiple possible reasons he may have made that recommendation. Possibly, as he did in Volume One, Smith is just trying to adhere to normal procedure as much as possible, to prove that he and any lawyers who attempt to remain at DOJ after next week never tried to pull a fast one on Trump. Possibly, Smith simply believes the legal posture of the case, in which ceding Aileen Cannon’s view that everything that happened after November 18, 2022 is unconstitutional would concede the report is too, makes releasing it impossible at the moment.
Possibly someone involved with all this believes there’s a different way to get the volume released.
Again, given what we see in Volume One, I assume it’s one of the first reasons: It really is department policy not to harm the trial rights of defendants (Mueller succeeded in releasing his report even though both Roger Stone and Yevgeniy Prigozhin’s trolls still had to stand trial, which led to many squabbles about redactions). For whatever well- or ill-considered or naive opinions, Smith really is trying to reassure everyone that everything is normal.
That said, there are some reasons to believe the report won’t get destroyed right away. One is that several people have already FOIAed it, creating legal problems (that Trump and possibly even Pam Bondi don’t care about) if it disappears. A far stronger one is that to investigate anyone from Jack Smith’s team, you need to preserve Jack Smith’s records.
I can think of several ways this report might still be liberated via other means.
But it’s worth noting that when it comes time to make Nauta’s appeal go away, every single person Trump wants at DOJ has a conflict: aspiring Deputy Attorney General Todd Blanche was Trump’s attorney on this, aspiring Solicitor General John Sauer his appeals attorney. Emil Bove, who will serve in the unconfirmed position of PADAG and will run the department starting Monday until others are confirmed, was also on Trump’s Florida team. And Pam Bondi joined an amicus before the 11th.
When Bondi, at least, was asked about her many conflicts in her confirmation hearing, she gave the standard rote answer: that she would consult with the career ethics officials at DOJ. That amounted to a tacit, non-binding commitment that she (and Bove, who’ll get there before her) won’t eliminate those key career officials. If that were to include Brad Weinsheimer, who supervised all of the Special Counsels Garland approved (and may have influenced the unsatisfying scope of Smith’s final report), that would put him the middle of these decisions.
As noted, even while DOJ seems to be pursuing a least-damage approach with Volume Two, they are establishing the prerogatives of Congress to access this report — and not just the report, but even underlying 302s from the investigation.
The Department has historically made materials available for in camera review by members of Congress as part of the process to accommodate the Executive Branch’s interests in protecting the confidentiality of sensitive information while ensuring that Congress can fulfil its own constitutional oversight functions.2 For example, when a congressional committee sought FBI Form 302 interview reports referenced in the Final Report of Special Counsel Robert Mueller, the Department reached an agreement with the Committee to make those reports available in camera, at the Department, pursuant to specified terms, with redactions to protect privileged and grand jury information. See Supplemental Submission Regarding Accommodation Process ¶¶ 1-2, In re: Application of the Committee on the Judiciary, U.S. House of Representatives, No. 1:19-gj-00048- BAH, ECF No. 37 (D.D.C. October 8, 2019).
2 Congress has recently, on multiple occasions, taken the position that it has a particularized legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels. See., e.g., Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 43, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 4, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 10, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024).
Wouldn’t it be better for Raskin to at least assert his own constitutional prerogative here, rather than a letter that doesn’t address the procedural means via which Garland could dismiss the case? Particularly given that, in the vacuum created by his silence, Trump is making Raskin’s partisanship cause to keep the document sealed?
Thus, the government is not seeking, as it claims, to aid Congress in exercising its “oversight functions.” Doc. 703 at 3. Instead, by delivering Volume II to unashamed partisans, the government strategically aims to ensure the Volume’s public release. Although the government claims that a purported “agree[ment] to specified conditions of confidentiality,” id. at 4, would alleviate these concerns, it would do nothing of the sort. As the government well knows, the Constitution prohibits any enforceable restrictions on the ranking members’ use or disclosure of information in furtherance of their official duties. The ranking members could, for example, stand on the floor of the House or Senate and disclose the entire contents of Volume II, without fear of any legal consequence. U.S. CONST. art. I, § 6, cl. 1 (providing for Speech or Debate Immunity); Hutchinson v. Proxmire, 443 U.S. 111, 130 (1979) (“A speech by [a Senator] in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record.”). Thus, whatever “confidentiality agreement” the government purports to adopt (the terms of which the government has pointedly not provided the Court), it is entirely illusory, because no such agreement is enforceable. Disclosure to the ranking members is functionally equivalent to public disclosure. This, in turn, poses an extraordinary danger to President Trump’s ability and right to prepare for the Presidency free of such unconstitutional attacks by the incumbent administration.
If this report doesn’t come out, it can be made into an anvil to hang over the entire leadership of DOJ. To make it one, though, you need to establish clearly that Congress has equities in this document, too, and any abridgment of those equities will provide opportunity for Congress to intervene with DOJ.
Thus far, Congressional Democrats have chosen a far less effective route.
The Inadequate Declination Discussions in Both Special Counsel Reports
In a post in November and a podcast appearance with Harry Litman, I argued that the Special Counsel regulations mandating that prosecutors describe declination decisions, as well as prosecution decisions, might produce the most interesting part of Jack Smith’s report.
Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
After all, Robert Hur wrote a humdinger of a 388-page report that was nothing but declination decisions.
But in my opinion, neither Jack Smith nor David Weiss adequately fulfilled the terms of that mandate.
To be sure, Jack Smith did include several important sections describing declination decisions. As I laid out here, Smith described why prosecutors had not charged Trump with insurrection, the sole charge that could have disqualified him from returning to the presidency. A footnote explained that prosecutors had considered charging Trump under the Anti-Riot Act, but courts have struck down parts of it. The footnote also explained that because prosecutors “did not develop proof beyond a reasonable doubt that the conspirators specifically agreed to threaten force or intimidation against federal officers,” (presumably including Mike Pence), they did not charge Trump with conspiracy to injure an officer of the United States.
In a separate paragraph, Smith provided an unsatisfying answer about why he didn’t charge any of Trump’s co-conspirators.
Before the Department concluded that this case must be dismissed, the Office had made a preliminary determination that the admissible evidence could justify seeking charges against certain co-conspirators. The Office had also begun to evaluate how to proceed, including whether any potential charged case should be joined with Mr. Trump’s or brought separately. Because the Office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump–the head of the criminal conspiracies and their intended beneficiary–this Report does not elaborate further on the investigation and preliminary assessment of uncharged individuals. This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.
My suspicion is that the prosecution, which included two prosecutors who dealt with the aftermath of Trump pardoning his way out of criminal exposure in the Russian investigation, recognized it was not worth charging others until such time as Trump couldn’t pardon their silence. That is consistent with the seeming late addition of a Ken Chesebro interview, which seems to reflect his troubled efforts to cooperate in state cases. But if this investigation looked like it did because of Trump’s past success at pardoning his way out of criminal exposure, it would be really useful to explain that.
It would have been useful, too, to point out that the same Speech and Debate protections that created a 16-month delay in obtaining texts from Scott Perry’s phone also made it impossible to charge any of the Members of Congress who facilitated Trump’s coup attempt. Those who don’t understand the breadth of Speech and Debate need to be told that.
So Smith did include some of his declination decisions, but some of those discussions are less than satisfying.
But there are two areas where more might have been useful. For example, for some time, prosecutors investigated whether Trump used funds raised for election integrity on other things, like providing big contracts to people who had remained loyal to him. If Trump defrauded his rubes but for some reason prosecutors couldn’t charge him for it, it would be useful to lay that out. That prong of the investigation is unmentioned in the report, which in many respects appears designed to avoid antagonizing Trump.
There’s a more important discussion that does appear in the report, but which is not treated as a prosecutorial decision. In the section on Litigation Challenges, Smith includes a long discussion titled, “Threats and Intimidation of Witnesses.”
A significant challenge that the Office faced after Mr. Trump’s indictment was his ability and willingness to use his influence and following on social media to target witnesses, courts, and Department employees, which required the Office to engage in time-consuming litigation to protect witnesses from threats and harassment.
Mr. Trump’s resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies. A fundamental component of Mr. Trump’s conduct underlying the charges in the Election Case was his pattern of using social media-at the time, Twitter-to publicly attack and seek to influence state and federal officials, judges, and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr. Trump’s scheme. After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed. See ECF No. 57 at 3 (one witness identifying Mr. Trump’s Tweets about him as the cause of specific and graphic threats about his family, and a public official providing testimony that after Mr. Trump’s Tweets, he required additional police protection). In the context of the attack on the Capitol on January 6, Mr. Trump acknowledged that his supporters “listen to [him] like no one else.” 260
The same pattern transpired after Mr. Trump’s indictment in the Election Case. As the D.C. Circuit later found, Mr. Trump “repeatedly attacked those involved in th[e] case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony,” Trump, 88 F.4th at 1010. Those attacks had “real-time, real-world consequences,” exposing “those on the receiving end” to “a torrent of threats and intimidation” and turning their lives “upside down.” Id. at 1011-1012. The day after his arraignment, for example, Mr. Trump posted on the social media application Truth Social, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Id. at 998. The next day, “one of his supporters called the district court judge’s chambers and said: ‘Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.'” Id. 26 l Mr. Trump also “took aim at potential witnesses named in the indictment,” id. at 998-999, and “lashed out at government officials closely involved in the criminal proceeding,” as well as members of their families, id. at 1010-1011.
To protect the integrity of the proceedings, on September 5, 2023, the Office filed a motion seeking an order pursuant to the district court’s rules restricting certain out-of-court statements by either party. See ECF No. 57; D.D.C. LCrR 57.7(c). The district court heard argument and granted the Office’s motion, finding that Mr. Trump’s public attacks “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” ECF No. 105 at 2. Because no “alternative means” could adequately address these “grave threats to the integrity of these proceedings,” the court prohibited the parties and their counsel from making public statements that “target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” Id at 3. The court emphasized, however, that Mr. Trump remained free to make “statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that [he] is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of[his] current political rivals.” Id. at 3.
Mr. Trump appealed, and the D.C. Circuit affirmed in large part, finding that Mr. Trump’s attacks on witnesses in this case posed “a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function,” with “the undertow generated by such statements” likely to “influence other witnesses” and deter those “not yet publicly identified” out of “fear that, if they come forward, they may well be the next target.” Trump, 88 F.4th at 1012-1013. Likewise, “certain speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of th[e] case,” since “[m]essages designed to generate alarm and dread; and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration of justice.” Id at 1014. [snip]
Sure, this was treated as a litigation issue. But, in theory, there were alternative means to prevent Trump from attacking witnesses. When Jan6er Brandon Fellows — like Trump accused of obstruction — made similar threats, but without the big mouthpiece that makes it so dangerous, Trump appointee Trevor McFadden put him in an extended pretrial detention. You were never going to be able to treat Trump like a normal pretrial defendant, but shouldn’t you make that point?
More importantly, witness intimidation is also a crime. It’s the same statute, 18 USC 1512, under which Trump was charged. In fact, when Trump challenged his gag before the DC Circuit, Patricia Millett asked John Sauer where criminal witness tampering ended and the kinds of threatening language he was using began (and she treated the means by which Trump makes threats at length in her opinion upholding much of the gag).
Judge Millett then tries a different tack. She wants to know if Sauer concedes that a trial judge can constitutionally limit a criminal defendant’s speech in any way beyond what’s already limited by criminal laws, like the witness tampering statute. She notes that the Supreme Court’s conception of even the clear and present danger test is still that it is a balancing test that requires consideration of the weighty constitutional interest in protecting the integrity of a criminal trial as well as the First Amendment interests of the defendant.
Sauer responds that Brown guarantees the defendant “absolute freedom” on core political speech.
“So there is nobalance,” says Judge Millett. She adds that calling it “core political speech” begs the question of whether it is in fact political speech or whether it is speech “aimed at derailing or corrupting the criminal justice process.” Sauer responds that Trump’s campaign speech is “inextricably entwined” with freely responding to the entire election interference prosecution.
Trump’s ability and willingness to sic mobs on all his enemies is the core of his conduct, both on January 6, during this litigation, and going forward. And the incoming Solicitor General argued that such threats and intimidation is “core political speech.”
It is the reason he threatens democracy in America.
Yet in discussing his thinking about how to deal with the threat posed by Trump’s threats, Smith didn’t even discuss why Trump could threaten Mike Pence in advance of a trial in which Pence would be expected to testify about how Trump almost got him assassinated without being charged with witness tampering.
With no awareness, Trump’s witness tampering became a litigation challenge, rather than the crime it might be treated as for anyone else.
Which brings me to David Weiss’ report, which is nothing short of pee my pants hysterical. It is riddled with procedural and evidentiary problems, and wild refashionings of the public record. Though I commend Derek Hines for finally ending his practice of fabricating what Hunter Biden’s memoir says, fabrications he relied on repeatedly to convince Judge Noreika there was no selective prosecution and to convince the jury of Hunter’s guilt; I hope to return to this to show that, by abandoning his fabrications, Hines actually proves he didn’t have the evidence to prosecute Hunter he claimed to have.
Much of the report is a “doth protest too much” effort to claim that the investigation wasn’t riddled with political influence. But tellingly and fucking hilariously, all those complaints are directed to Joe Biden, including this accusation:
Politicians who attack the decisions of career prosecutors as politically motivated when they disagree with the outcome of a case undermine the public’s confidence in our criminal justice system.
Weiss blames Joe Biden for undermining the public’s confidence in our criminal justice system even though his discussions of Hunter Biden’s claims of selective prosecution, Weiss made no mention of the very specific references Hunter made to Trump’s interventions in the case, including Trump’s public attack on the outcome of the original plea deal that contributed, according to Weiss’ own sworn testimony, to threats that led him to worry for the safety of his family.
“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”67
“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”68
“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .” 69
[snip]
“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. . . . ”
After spending much of his report attacking Joe Biden, Weiss claimed, “when politicians expressed opinions about my conduct, I ignored them because they were irrelevant.”
I hope to lay out all the other hilarity before such time as Weiss gets dragged before Congress.
Weiss’ charging decisions have flaws. My favorite is how, after dutifully laying out that Principles of Federal Prosecution require considering whether the suspect “is subject to effective prosecution in another jurisdiction,”
Even when a prosecutor determines that the person has committed a federal offense and that the evidence is sufficient to obtain a conviction, the Principles require that he also assess whether three other factors exist that may counsel against prosecution:
[snip]
(2) the person is subject to effective prosecution in another jurisdiction; or
Weiss then ignores the fact that Hunter was subject to charges in Delaware, which declined to prosecute.
It’s in the declinations, though, where David Weiss proves he’s falsely disclaiming selective prosecution. Several times, Weiss plays coy rather than explaining why he didn’t charge things, like tax crimes associated with 2014 and 2015, even though he stated under oath in November 2023 that he would have the “opportunity in the submission of a report to address such matters.”
19 26 U.S.C. § 6103(a) prohibits the disclosure of “return information,” which includes information disclosing “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Id. § 6103(b)(2)(A). Accordingly, I cannot publicly discuss any other tax years that may have been under investigation. See Snider u. United States, 468 F.3d 500, 508 (8th Cir. 2006).
I assume Biden is happy that Weiss didn’t lay out how Weiss was still pursuing Kevin Morris’ support for Hunter even after the guilty verdicts (but as I’ll show one of his temporal games involves just that),
President Biden has chosen to issue a “Full and Unconditional Pardon” for Mr. Biden covering “those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.” 152 Accordingly, I cannot make any additional charging decisions as to Mr. Biden’s conduct during that time period. It would be inappropriate to discuss whether additional charges are warranted.
But Weiss didn’t have the integrity, as Jack Smith did, to admonish, “This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.” He lets the rabid mobs believe they are.
It’s in how Weiss buries his own selective prosecution where his declinations are most corrupt. In his letter conveying the report to Merrick Garland, he describes that he is adhering to Department policy by not identifying uncharged third parties.
Therefore, in drafting this report, I was mindful of Department policies that caution restraint when publicly revealing information about uncharged third parties. Specifically, with respect to “public filings and proceedings,” Justice Manual § 9-27.760 provides that prosecutors “should remain sensitive to the privacy and reputation interests of uncharged parties,” and that it is generally “not appropriate to identify . . . a party unless that party has been publicly charged with the misconduct at issue.” 7 The Justice Manual also sets forth factors to guide the disclosure of information about uncharged individuals, such as their privacy, safety, and reputational interests; the potential effect of any statements on ongoing criminal investigations or prosecutions; whether public disclosure may advance significant law enforcement interests; and other legitimate and compelling governmental interests.
As a result, David Weiss doesn’t explain why he prosecuted Hunter Biden for lying on a gun form and he prosecuted Biden nut Alexander Smirnov for lying to his FBI handler in an attempt to frame Joe Biden, but he didn’t prosecute anyone from the gun store who allegedly engaged in the same kind of conduct that Hunter Biden and Alexander Smirnov did: make a false statement on a gun form and also coordinate a story in an effort to … create a political attack on Joe Biden during an election year.
The reasonable reasons why Weiss decided to immunize Ron Palimere yet charge Hunter all debunk much of the rest of his report, specifically with regards to deciding there was plenty of evidence to charge a gun crime in 2023, before entering into the failed plea deal. Either prosecutors knew Palimere had doctored the form when Weiss made that supposed prosecutorial decision, or (as he implied in court filings) he only discovered it when Hunter’s lawyers raised it, and he gave Palimere immunity so he could still win conviction against Hunter, in which case he never looked at the evidence before charging Hunter (which is consistent with virtually every other fact in the case).
Still, it’s selective prosecution. Prosecute the gun crime that Republicans — including Palimere — demanded be prosecuted, but immunize Palimere, who testified to treating other VIP customers similarly.
And Smith demonstrates that, contra Weiss, one can adhere to Justice Manual requirements yet still admit there was another suspected crime. In his section explaining why he didn’t charge Trump’s co-conspirators, he revealed that he did refer a subject of the investigation to another US Attorneys office.
In addition, the Office referred to a United States Attorney’s Office for further investigation evidence that an investigative subject may have committed unrelated crimes.
Weiss could have used a similar approach to describe that he immunized someone — someone who would pose an ongoing risk to the public if he continues to engage in the same behavior — for effectively the same crime for which he prosecuted Hunter Biden.
But that would give up his entire game.
Whatever else these Special Counsel reports reveal about our justice system, the blind spots both Special Counsels use to coddle Trump confirm that Special Counsels will never be able to hold Trump accountable for the existential threat he poses to democracy.
If You Can’t Stand the Hypotheticals, Get Out of the Cabinet
Pete “Don’t Ask Me Any Hypotheticals” Hegseth, nominee to be Secretary of Defense
First it was Pete Hegseth who said it, followed 24 hours later by Pam Bondi. In the days ahead, I am sure we will hear the same from Tusli Gabbard, Robert Kennedy Jr., Marco Rubio, Kash Patel . . . et cetera, et cetera. et f-ing cetera: “Senator, I am not going to talk about a hypothetical.” Implied in the body language and tone of voice is the unstated addition “. . . and how dare you ask me about mythical future possibilities, rather than focus on the here and now.” Though to be fair, sometimes, as with Bondi’s exchange with Adam Schiff, that “how dare you” is spoken out loud.
But here’s the thing: the job description of every member of the Cabinet, and every senior leader of a federal agency, is centered on hypotheticals.
The Department of Defense is certainly focused on hypotheticals. The senior leadership — the Secretary of Defense, the Joint Chiefs, the various regional commanders, and a host of others — spend a huge amount of energy imagining hypothetical situations, and then planning on how to address those situations. “What would we do, if Iran successfully lobs a bomb at Israel?” or “How would we react to China sending a fleet up and down the coast of New Zealand, at the same time that they run ‘war games’ around Taiwan?” or “How would we respond to a North Korean missile that appears headed to strike Japan?” Senior DOD folks fear one thing above all: something happens that they never even imagined would happen.
The State Department and the Intelligence agencies operate with much the same fear. Every one of them dwells on hypotheticals every day, both reactive (“What do we do if they do X?”) and also proactive (“How might we game out a path to Z, knowing how others would react to our actions?”) None of these national security leaders want to have to face the question “How could you have missed this?” Lower level staffers put together voluminous briefing books for senior leaders, trying to prepare them for all the hypothetical situations they might encounter on a foreign trip, or when meeting with a foreign counterpart here in the US.
Lawyers — like the Attorney General — play with hypotheticals all the time as they plot out investigative paths, map the steps toward indictments, and game out strategy for trials. “If they say X, how do we respond? . . . If we want a judge to grant us a search warrant, what do we need to show, without fully tipping our hand for all the world to see? . . . If we want the jury to agree with us, how to we move them in that direction?” The legal cliche “Never ask a question you don’t know the answer to” is the logical advice that emerges in a profession that thrives on hypotheticals.
If Pete Hegseth and Pam Bondi hate talking about hypotheticals, they are angling for the wrong jobs. The jobs for which they are nominated require that they embrace hypotheticals, not reject them.
But it’s not just these national security positions. Look at a department as benign as the Department of Transportation. How many times has Pete Buttigieg’s day been turned upside down by a bridge collapse, a railroad derailment, or a computer glitch that screws up the aviation industry? The Department of Transportation has all kinds of folks who spend their days imagining hypotheticals and preparing for how to react if they come to be, or (even better) how to prevent them from taking place in the first place. If you can’t imagine something happening, you can’t imagine how to prevent it or react to it.
Or think of the Department of Agriculture. What would the Department do, if a hot dry summer kills off crops across the Great Plains? What if a hard freeze hits the entire southeast, killing off the citrus industry? What would the Department do, if an epidemic of bird flu hits chicken producers and processors, and then appears in the dairy industry?
Oh, wait. That last one isn’t a hypothetical.
Then, of course, there are agencies like the CDC, NIH, and FDA. Their whole reason for being, at the top of a public health system that goes down to local health departments, is to get ahead of diseases. Two questions drive every bit of their work: (1) How can we slow and stop a disease from spreading? and (2) How can we prevent an outbreak from starting in the first place? Both of those questions require imagining hypotheticals, so that hypothetical strategies can be developed. When folks in the early 20th century asked “Are there actions that can be taken to reduce the spread of disease?” they realized that things like public sanitation matter. Get clean water into every home. Keep trash from piling up in the streets, and thus keep rats and other disease-spreaders at bay. At the same time, researchers looked at strategies aimed at individuals, like improved nutrition, vaccines, and therapies of all kinds. Good research scientists ask “what if . . . ” every day of their professional lives, and those who support and guide these scientists do the same.
The more these Trump nominees express their refusal to examine hypotheticals, the more some Senator needs to point out that the jobs they are selling their souls for are filled with these things they hate.
