There’s a telling part of the Guardian story reporting that Stephen Miller was in charge of the decision to blow some Venezuelan fishing boats up. The article starts by describing previously undisclosed bureaucratic maneuvers via which Miller created his own little National Security Council.

Stephen Miller, the White House deputy chief of staff, has played a leading role in directing US strikes against suspected Venezuelan drug boats, according to three people familiar with the situation. At times, his role has superseded that of Marco Rubio, the secretary of state and national security adviser.

The strikes on the Venezuelan boats allegedly carrying narcotics, which the administration has claimed were necessary because interdiction did not work, have been orchestrated through the homeland security council (HSC), which Miller leads as the homeland security adviser.

Miller empowered the HSC earlier this year to become its own entity in Donald Trump’s second term, a notable departure from previous administrations where it was considered part of the national security council and ultimately reported to the national security adviser.

As a result, the HSC has taken the lead on engaging the Venezuelan boats, the people said, a situation evidenced by his top deputy, Tony Salisbury, and others being the gatekeepers to details about what boat to strike until they are about to occur.

That was the case for instance with the second Venezuelan boat hit with hellfire missiles on 15 September. While the White House was informed the Pentagon had identified the boat as a viable target more than four days before, many top White House officials only learned of the impending strike hours before it happened.

Then it provides the White House comment saying, oh yeah, that means the President did it.

A White House spokesperson said in a statement the strikes were directed by Trump, saying he oversaw all elements of foreign policy. “The entire administration is working together to execute the president’s directive with clear success,” the statement said.

This thing already had all the trappings of “Trump’s” Alien Enemies Act declaration, starting with the transparently false claims of intelligence. In that case, Trump said he’s not the one who signed it.

That also extends to the legal justification.

John Yoo (even John Yoo) publicly explained that you can’t just blow up people you claim are drug traffickers.

[T]he U.S. cannot wage war against any source of harm to Americans. Americans have died in car wrecks at an annual rate of about 40,000 in recent years; the nation does not wage war on auto companies. American law instead relies upon the criminal justice or civil tort systems to respond to broad, persistent social harms. In war, nations use extraordinary powers against other nations to prevent future attacks on their citizens and territory. Our military and intelligence agents seek to prevent foreign attacks that might happen in the future, not to punish past conduct. To perform that anticipatory and protective function, we accept that our military and intelligence forces must act on probabilities, not certainties, to prevent threats that might never be realized.

Law enforcement, by contrast, punishes perpetrators for crimes that have already occurred. The U.S. has long considered drug trafficking a matter for the criminal justice system. The difference in purpose dictates different tools. The FBI and the Drug Enforcement Administration — not the U.S. armed forces — have prime responsibility for interdicting drug smuggling (although the military can play a supporting role). The FBI and DEA seek to disrupt the operations of drug cartels with the traditional tools of law enforcement: collecting evidence, arresting suspects and imprisoning the guilty only after a trial. Deadly force may be used only if necessary to defend the law enforcement agent, or another person, against an imminent threat to life.

As an official in the Justice Department’s Office of Legal Counsel, I was at my desk on Sept. 11, 2001. I advised that the U.S. could wage war against al-Qaeda without blurring the distinction between crime and war. After 9/11, the U.S. declared that it would wage war for the first time against an organization, rather than a nation. But the drug cartels alone do not present a similar challenge that rises to the level of war.

Crime is generally committed for personal gain or profit rather than a political goal. Drug cartels employ murder, kidnapping, robbery and destruction to create a distribution network, grab turf from other gangs, intimidate rivals or customers, and even retaliate against law enforcement. National security threats, such as terrorist groups, might resemble organized crime in some respects, but the Mafia and drug cartels are unconcerned with ideology and are primarily out to satisfy their greed.

Yoo effectively suggested (or rather, suggested, as ineffectively as he is wont) that if the Administration could just tie the trafficking to the Maduro regime, then blowing up fishing boats would be cool.

The use of military force against the cartels may plunge the U.S. into a war against Venezuela. But a conflict focused against the Maduro regime is not a broad, amorphous military campaign against the illegal drug trade, which would violate American law and the Constitution.

The White House has yet to provide compelling evidence in court or to Congress that drug cartels have become arms of the Venezuelan government. That showing is needed to justify not only the deportations (which were just overturned by the conservative U.S. Court of Appeals for the 5th Circuit) but also the naval attacks in the South American seas.

If the administration does meet the high standards for war, it would open the door to another set of difficult problems: Every member, not just of the Venezuelan armed forces but also of the drug cartels, would become a legitimate military target; the U.S. could attack and even occupy Venezuelan territory; and all Venezuelans here would become enemy aliens.

But recognizing a state of armed conflict against Venezuela would prevent the misuse of the tools of war to fight the eternal social problem of crime.

That Yoo piece was September 23.

About a week later, DOD’s General Counsel attempted to explain this all to the Senate Armed Services Committee.

Senators on both sides of the aisle pressed the Pentagon’s top lawyer in a closed-door meeting to provide a better legal explanation for striking alleged Latin American drug boats in the Caribbean, according to people with knowledge of the matter.

In a classified Senate Armed Services Committee briefing Wednesday, the Pentagon general counsel, Earl Matthews, detailed the legal basis for the military’s attacks ordered by President Trump.

Matthews repeatedly referred to Trump’s designation of certain Latin American drug cartels as foreign terrorist organizations, which he said granted the Defense Department unilateral authority to use military force against them, some of the people said. Matthews refused to provide a written justification for the strikes, which legal experts say is necessary for transparency and accountability.

Just a day after the closed-door briefing, Trump declared in a confidential notice to Congress that the U.S. is in a “non-international armed conflict” with the cartels. In the document, which was sent Thursday to Congress and viewed by The Wall Street Journal, the administration dubbed the cartels as “designated terrorist organizations” and said it “determined that their actions constitute an armed attack against the United States.”

But it didn’t work. In the most US Congress move ever, the SASC didn’t tell DOD to stop blowing up fishing boats, but did instruct them to come up with some better legal excuse for doing so.

Some of the Republican and Democratic lawmakers who attended Wednesday’s Armed Services Committee briefing expressed concern about the administration’s rationale and urged officials to devise a stronger legal case, some of the people familiar with the discussion said.

And that may be what precipitated the “notice” to Congress that, like all else, Trump had usurped their authority to declare war, too.

President Trump has decided that the United States is engaged in a formal “armed conflict” with drug cartels his team has labeled terrorist organizations and that suspected smugglers for such groups are “unlawful combatants,” the administration said in a confidential notice to Congress this week.

The notice was sent to several congressional committees and obtained by The New York Times. It adds new detail to the administration’s thinly articulated legal rationale for why three U.S. military strikes the president ordered on boats in the Caribbean Sea last month, killing all 17 people aboard them, should be seen as lawful rather than murder.

Mr. Trump’s move to formally deem his campaign against drug cartels as an active armed conflict means he is cementing his claim to extraordinary wartime powers, legal specialists said. In an armed conflict, as defined by international law, a country can lawfully kill enemy fighters even when they pose no threat, detain them indefinitely without trials and prosecute them in military courts.

[snip]

The Trump administration has called the strikes “self-defense” and asserted that the laws of war permitted it to kill, rather than arrest, the people on the boats because it said the targets were smuggling drugs for cartels it has designated as terrorists. The administration has also stressed that tens of thousands of Americans die annually from overdoses.

However, the focus of the administration’s attacks has been boats from Venezuela. The surge of overdose deaths in recent years has been driven by fentanyl, which drug trafficking experts say comes from Mexico, not South America.

Yeah, Miller wants to include Mexico in here (or at least including Mexico as a threat of invasion). But what’s to stop with Mexico, when you’ve already got an Executive Order claiming that China’s supply of fentanyl precursors is a national emergency.

This is an example of the kind of thing that’ll show in my upcoming post on Miller: He’s great at accruing bureaucratic power, simply usurping the National Security Council on his way to usurping most functions of Congress. But he’s really really bad about the details, about the actual facts, like making sure something is legal before you do it.

And thus far, the facts here say that Stephen Miller murdered a bunch of fishermen in callous blood.

Remember how I argued that DOJ might actually be trying to get no-billed in the Jim Comey case? I argued that if the case were charged, it could put Todd Blanche, especially, in a really awkward position.

These leaks make it far more likely that Lindsey the Insurance Lawyer will get no-billed (meaning they’[d] vote against indicting Comey). And that may be the point. Indeed, her law license may be among a handful that get saved in the process.

Consider how this would look to Todd Blanche.

Blanche may not have noticed that DC added Ken Chesebro yesterday to the growing list of former Trump lawyers who’ve lost their license to practice law. But he’s no doubt aware of how common it is for Trump lawyers to lose their law licenses.

Also yesterday, the judge presiding over Luigi Mangione’s case, Margaret Garnett, gave DOJ one last warning about inappropriate public comments made about the accused killer, including by Blanche’s own Chief of Staff, before she starts sanctioning DOJ.

In her order, Garnett specifically directed Todd Blanche to clean all this up.

[snip]

Blanche’s personal exposure in the LaMonica McIver case goes far deeper. He is at once:

• The official who ordered DHS personnel to arrest Ras Baraka even after he had left Delaney Hall property, creating the physical confrontation in which McIver was charged, and as such, part of the law enforcement team and implicated in a potentially unlawful arrest
• The person whose office conducted the prosecutorial review previously done by career prosecutors in Public Integrity Division after that got shut down
• Because Alina Habba continues to play US Attorney after being unlawfully retained, the person in charge of the prosecution

If McIver’s own selective and vindictive prosecution claim gains any traction, we may learn far more about Blanche’s effort to criminalize a co-equal branch of government for conducting lawful oversight.

According to a recent CNN story, there’s good reason to believe I was right! DOJ gave her no support to get the indictment, but the FBI prepared her just enough to get the job done.

DOJ headquarters declined to provide lawyers to assist Halligan, and FBI agents and lawyers working to prepare her were denied their request for a para-legal professional to assist in the presentation, according to two people familiar with the matter.

“Lindsey was set up to fail,” one of the sources familiar with the discussions said. “She was the lamb sent to slaughter.”

[snip]

Last Tuesday, Halligan began a crash course to prepare. Justice officials told her that the deputy attorney general’s office didn’t have lawyers to help her, and that it was against federal rules of criminal procedure for one of the attorneys from Justice headquarters to be in the grand jury room, one source familiar with the discussions said.

An administration official pushed back on the sources’ contention that Halligan did not have help from the Justice headquarters. Officials argued that Halligan was in touch personally with Deputy Attorney General Todd Blanche multiple times, including visiting the Department of Justice for meetings during the week leading up to her presentation, even if she lacked support from lower level attorneys with more experience in the grand jury room in Alexandria. The source added that Halligan and Blanche spoke after the indictment was issued.

Blanche and Attorney General Pam Bondi had earlier expressed qualms about the case, citing concerns raised in a memo produced by prosecutors who had spent months on the case, according to people familiar with the matter.

Instead, Halligan spent hours preparing with a group that included FBI attorneys and the agents who had led the investigation, the sources said.

Halligan participated in a number of “practice runs” and spent hours going through the exhibits in preparation, the sources said.

[snip]

But that Halligan succeeded in getting two counts handed up surprised Justice officials, who nonetheless immediately sought to celebrate.

Shortly after Halligan emerged from the courtroom Attorney General Pam Bondi issued a statement on X, declaring: “No one is above the law.”

In an administration where being quick to post on social media is prized, the move irritated Halligan and FBI officials who felt that top Justice officials were seeming to take credit for an indictment some believed they had sought to doom, according to sources briefed on the matter.

Well, Lindsey Halligan managed to convince barely enough grand jurors to approve the case to get an indictment. Which may be the worst of all worlds for DOJ, because however DOJ tried to insulate themselves, they failed the primary task but also made it easier to dig into the FBI (where Kash Patel lurks).

Meanwhile, Michael Feinberg provides some insight onto who the FBI personnel were who got her across the line. One, he describes as “John Durham’s factotum and enforcer,” a reference to Jack Eckenrode, whom Devlin Barrett told us — without understanding the egregious conflicts involved — was involved in the WDVA investigation. (Feinberg confirms this by pointing to the Eckenrode quote in this article.)

I learned the identities of the two primary investigators who developed the case against Comey.

One of the persons was unsurprising: A former special agent in charge, who has freelanced in a number of overly politicized matters since retiring—he served as John Durham’s factotum and enforcer, is now apparently back at the Hoover Building working in a similar capacity for Patel.

Things are about to get interesting, given that Eckenrode worked with Pat Fitzgerald on the Scooter Libby case. And that’s on top of the fact that Eckenrode kept chasing Russian disinformation for two years after he had reason to understand it was fabricated.

We can add Eckenrode to the list of people who could be criminally implicated by this investigation!

The other investigator is someone Feinberg believes is a really good investigator, leading him to wonder how the fuck someone could be involved in this.

It was the second name that completely undermined my composure. I used to supervise this agent, and, at times, I would like to believe I served somewhat as a mentor to him. We overlapped on the squad I led for only a year or so, but it was not uncommon for him to sporadically reach out when he faced a career decision and needed counsel. He was an outstanding investigator, a natural leader, and someone whom I wanted to see rise in the organization; it goes without saying that I would make time for him when he needed advice.

These two identities were not provided by any friends remaining in the FBI or the Justice Department—they would have known of the latter relationship and attempted to cushion the blow—but through a journalist’s tweet innocently forwarded by a Lawfare colleague. (I’m not providing a link to the post; the point of this article is not to name and shame someone but, rather, to use the situation as illustrative of how otherwise good people at the FBI, either voluntarily or by force, are being corrupted by its current leadership and overt weaponization.) Seeing my former agent’s name, though—once the shock subsided—made me think about the erosion of the rule of law once again not in terms of political theory or legal philosophy, but on a more human level: How does a special agent become involved in such a blatantly politically motivated revenge operation?

It hints at a really interesting possibility: that Lindsey the Insurance Lawyer relied on evidence in EDVA from the investigation at WDVA (basically a theory that Durham materials were put in burn bags to protect Comey rather than to hide Eckenrode’s own incompetence and reliance on Russian disinformation) that would present evidentiary problems, such as relevance problems, that an experienced prosecutor would know to avoid, but might convince jurors. That’s precisely what happened to John Durham’s prosecutions, and there, there were experienced prosecutors involved. They proceeded by wishcasting, just assuming they’d get evidence that was obviously inadmissible admitted at trial.

Here, there’s no experienced prosecutor to weigh those issues.

In any case, the statute of limitations on the charges have expired now, so we shall see whether and if so how Comey challenges Halligan’s appointment as a US Attorney. I mentioned the reason why this is probably true here, but Ed Whelan lays out the reasons she probably is only play-acting as US Attorney here.

4. As I explained in my initial post, the defect in a purported appointment of Halligan under section 546 arises from the fact that Erik Siebert had already served a full 120-day term as AG-appointed U.S. Attorney. Section 546 is best read to mean that the Attorney General cannot make a second interim appointment under section 546 after the first interim appointment has expired. Instead, the authority to make an interim appointment then lies with the district court. This has been DOJ’s own longstanding position, set forth in a 1986 Office of Legal Counsel opinion by then-deputy assistant attorney general Samuel Alito.

It turns out that (contrary to what I thought on Friday) Alito’s OLC opinion is publicly available. Here are some key excerpts (underlining added):

The statutory plan [for section 546] discloses a Congressional purpose that after the expiration of the 120-day period further appointments are to be made by the court rather than by the Attorney General….

Thus, it would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court. At most, it could be said that the district court has the primary authority to make subsequent interim appointments, and that the Attorney General may make such appointments only if the district court refuses to make such appointments, or fails to do so within a reasonable period.

In a footnote, Alito explains that Congress has constitutional authority to “place restraints on a statutory authority to make interim appointments.”

But even if they have, knowing there’s an investigation at WDVA with presumably less inexperienced prosecutors involved, it might be better to blow this investigation out of the water via other means, by using the publicity and Halligan’s screw-ups to getting it deemed vindictive.

Less than a week after copying a Joseph Goebbels speech to mythologize Charlie Kirk, Stephen Miller is trying to gin up outrage because Gavin Newsom’s trollish Xitter account called him, accurately, a fascist.

Because Stephen Miller’s expression of outrage about the use of inflammatory language — even the use of the word fascism — necessarily involved Miller projecting his own actions onto someone else, it led him to go on Hannity and confess he has been engaged in stochastic terrorism for years.

Hannity: Here with reaction, White House Deputy Chief for Policy, Homeland Security Advisor, our friend Stephen Miller. You know, it’s clear they don’t care. It’s clear the incendiary language will continue. Uh, it’s clear that in spite of threats against you, your children, your wife, that they’re not stopping going after you personally and by name.

Uh, uh, your reaction to it all?

Miller: Well, the Democrat [sic] Party has become a party that openly aids and encourages and foments violence. You know, we all live through the unspeakable tragedy of nearly two successful, of two nearly successful assassination attempts on President Trump. A bullet came with a centimeter of taking his life.

We watched in agony and horror as a crazed left wing terrorist murdered Charlie Kirk. Just while he’s giving a speech, having a debate on a college campus. We watched the United Healthcare CEO get gunned. Down. In cold. Blood. We saw just days ago a sniper try to take out ICE officers. And what do all of these killers and assassins have in common?

They’ve been radicalized by Democrat [sic] Party rhetoric that describes anyone who doesn’t share their warped, twisted worldview as fascist, worthy, by implication, of execution. They’re using this language to mark people. To put a target on them. And then on top of all of that, what else do they do? When Antifa, when these left-wing terrorists attack our law enforcement, Democrat [sic] judges won’t put them in jail.

Democrat-led police departments refuse to arrest them. Democrat [sic] mayors and governors refuse to pursue them, so when violence is openly occurring against the targets that they have named and identified, they will not arrest the violent agitators. And that’s why President Trump signed an executive order is called a National Security Presidential Memorandum, or NSPM, and that is when you change the formal national security policy of the country.

And so President Trump issued an NSPM last week that for the first time ever, establishes a national counterterrorism strategy to dismantle these radical left-wing terror groups, including, but not limited to Antifa. President Trump’s gonna find the members, he’s gonna find the funders, he’s gonna find the violent terrorists.

He’s gonna find everybody involved in these criminal conspiracies and one by one, Sean, we’re gonna dismantle them.

Hannity: Well, we’ve got to, and this rhetoric, I don’t care what people say. I, I hold people accountable for their actions, but you cannot convince me that this never-ending Nazi fascist, racist, you know, refrain of theirs is not impacting, especially people on the edge.

I’ll give you the last one.

Miller: It’s deliberate. Yes. I mean, so, you know, I asked the question why did. It was a rhetorical question, of course. Why did Gavin Newsom say Stephen Miller is a fascist? It is a message that his team is sending to all the crazies and lunatics out there, and we’re not gonna absolve the Democrats of responsibility anymore.

There’s a reason why all of these killers, all of these lunatics, all of these terrorists adopt the same language. They say they’re trying to kill the fascists. They’re trying to stop the fascists. This is deliberate. President Trump is saying that we as a nation are not gonna tolerate anymore and the Joint Terrorism Task Force at the FBI is gonna find these terrorists and we are gonna put the behind bars, Sean.

Hannity: Alright, Stephen Miller, you and your family, we pray for your safety.

Miller’s comments are riddled with lies.

• Having law enforcement twice prevent attacks on Trump is not a tragedy, it’s a success
• The ideology of most of the killers and attempted assassins Miller mentioned (Ryan Routh may be the big exception) are more ambiguous than Miller lets on — the commonalities to all of them are access to guns and mental health problems
• To claim Democratic rhetoric (and not guns, online culture, or mental health problems) is the cause of this violence, Miller ignores a bunch of other attacks, like the two attacks by former Marines over the weekend, the far right Evergreen shooter, the conspiratorial views of the CDC terrorist, the ideologic mush of the Annunciation shooter, the right wing views of Melissa Hortman’s killer, the right wing views of those who tried to kidnap Nancy Pelosi and Gretchen Whitmer, the Jan6ers specifically incited by Donald Trump to attack the Cincinnati FBI and stalk Barack Obama’s house
• It is false that cops or judges, whatever the ideology, are refusing to arrest actual assailants
• Likewise, it is false that all the judges who’ve denied detention requests are Democratic appointees

This is a transparent attempt to exploit the Kirk killing to start criminalizing opposition to Trump and truthful description of Stephen Miller’s own actions.

But it is also a confession.

The man who wrote the speech that led thousands of Donald Trump’s followers to attack the Capitol, many violently, has been exploiting such dehumanizing language, including the word “fascist” for years. He has particularly used it to refer to rule of law, the moderation of extremist — including overtly Neo-Nazi — speech, and Black people.

He called Biden “fascist Dukakis” for wearing a KC helmet.

He called Meta’s moderation of speech on its platform fascist.

He called the Democratic Party fascist because Trump got fined for lying on loan applications.

He used it when DOJ — with no involvement from Biden — prosecuted Trump along with 1,500 other people who broke the law on January 6.

He called both Fani Willis and Tish James fascists because they applied the law to Trump like they did others.

He used it when the Federal government investigated racism at Tesla.

He called Alvin Bragg a fascist for treating Trump like any other criminal.

He used it in conjunction with the NAACP when they called for a boycott after Xitter started replatforming far right extremists.

He called DHS efforts against disinformation fascist.

He used the word fascist to describe a discussion of platform moderation in conjunction with Elon Musk’s plans for Xitter (which looks more ominous in retrospect).

There was a clear progression here: Miller started by claiming it was fascist to moderate the speech of explicit Neo-Nazis and other white supremacists, but eventually he came to use it about Democrats generally, particularly the Black prosecutors who deigned to prosecute Trump for crimes others also get prosecuted for.

If Miller believes the word fascist inevitably leads to violent targeting, then he needs to be prosecuted himself for the violent threats that Trump’s prosecutors faced, or that immediately plagued Nina Jankowicz.

And while Miller generally stopped using the word fascist after Harris referenced John Kelly’s use of it to apply to Trump (as part of an effort to blame Democrats because a registered Republican who also considered targeting Biden shot at Trump), to this day — even in this speech — Miller uses dehumanizing language every chance he gets. He simply uses “Marxist” or “communist” or “radical” instead.

That’s not the most obvious case of Miller’s incitement of violence. Miller wrote the speech Trump delivered on January 6, which included these lines:

The media is the biggest problem we have as far as I’m concerned, single biggest problem. The fake news and the Big tech.

[snip]

All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing. And stolen by the fake news media.

[snip]

Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.

States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

[snip]

And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.

Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down.

[snip]

And you know what? If they do the wrong thing, we should never, ever forget that they did. Never forget. We should never ever forget.

[snip]

Or you will have a president, to put it another way, who was voted on by a bunch of stupid people who lost all of these states.

You will have an illegitimate president. That’s what you’ll have. And we can’t let that happen.

According to the January 6 Report, much of the targeting of Mike Pence was not in the prompter, though Miller was involved in restoring attacks on Pence after Pence refused to obstruct the vote certification.

And the speech had precisely the same effect that Trump’s attacks on Nancy Pelosi and Gretchen Whitmer had or his false claims about the Mar-a-Lago search had on Ricky Shiffer or that his posting of Barack Obama’s address had on Tyler Taranto or that non-stop attacks on Anthony Fauci had on the CDC terrorist.

Thousands of people marched the Capitol. Hundreds of those assaulted law enforcement. Scores of people wandered the halls calling for the assassination of Mike Pence, Nancy Pelosi, Mitch McConnell.

And now Stephen Miller confesses that the use — his use — of dehumanizing language to target someone demonstrates intent? Now Stephen Miller describes precisely how such inflammatory language — the kind he used in the speech he cribbed from Goebbels and QAnon — used against Democrats?

The light will defeat the dark. We will prevail over the forces of wickedness and evil. They cannot imagine what they have awakened.

They cannot conceive of the army that they have arisen in all of us because we stand for what is good, what is virtuous, what is noble. And to those trying to incite violence against us, those trying to foment hatred against us, what do you have? You have nothing. You are nothing. You are wickedness. You are jealousy. You are envy. You are hatred. You are nothing. You can build nothing. You can produce nothing. You can create nothing.

Yes, Stephen Miller used his Hannity appearance to spew lies, lies about what lies behind the non-stop wave of shootings in the United States, projection to blame Democrats when the commonalities start with guns and include mental health struggles.

But he also confessed.

Stephen Miller confessed that when he uses such dehumanizing language he is, “using this language to mark people. To put a target on them. … It is a message [he] is sending to all the crazies and lunatics out there” to go target the people he dehumanizes.

Yesterday, at 5:46PM, the Senate rejected a cloture vote on the Democratic continuing resolution, which in addition to funding government, would extend healthcare support and prohibit impoundment. It was a party line vote.

Yesterday, at 6:41PM, the Senate rejected a cloture vote on the Republican continuing resolution. Three Democrats voted with 52 Republicans in favor:

• Catherine Cortez Masto
• John Fetterman
• Angus King

Rand Paul voted with Democrats against.

And so, at midnight, nonessential functions of the Federal government started to shut down.

Both NYT and WaPo have pieces explaining that polarization is at the core of the shutdown. That’s facile. Three Democrats, certainly moderates, already did vote with Republicans. The six who voted to let Republicans vote for the continuing resolution (and in Jeanne Shaheen’s case, also for the CR) in March — Dick Durbin, Kirsten Gillibrand, Maggie Hassan, Gary Peters, Brian Schatz, as well as Chuck Schumer — could well cave now, though several of these (at least Durbin and Schatz) did so from an institutionalist view rather than a centrist one. The truly radical edges of Senate which are, with perhaps only Bernie as the exception, on the far right, have always been the ones to push for a shutdown in the past.

One reason we don’t know how things will go is that the conventional wisdom about shutdowns may — may — no longer apply. In my opinion, a lot will depend on what becomes visible because of the shutdown, a lot will depend on how far public opinion deviates, and in which direction, from beltway conventional wisdom.

Seeing Russ Vought

Start with Russ Vought. To my mind, too few Democrats have framed their primary message — that this is a fight to actually return to existing funding levels before the Big Ugly Bill stripped healthcare from millions of Americans and from rural hospitals — to include the power of the purse. That is, almost no one is being told that the issue, and one of two main differences in the competing continuing resolutions, pertains to protecting Congress’ power of the purse.

The SCOTUS shadow docket opinion permitting Vought to usurp that power as the case moves forward has raised the stakes of this for Democrats and, as this Politico article lays out, made it easier for them to explain the stakes.

Now the Supreme Court’s brief but potent ruling last Friday giving Trump the thumbs up to withhold $4 billion is serving as lighter fluid for Democrats’ escalating rage.

Sen. Jeff Merkley (D-Ore.), a senior appropriator, called the Supreme Court decision “an absurdity” and “a pile of garbage,” adding that the justices were in effect dabbling at “policymaking — not constitutional law.”

The battle to rein in Trump and White House budget director Russ Vought through a piece of must-pass legislation has been eclipsed by Democrats’ larger push to extend expanded Affordable Care Act tax credits that are due to expire at the end of the year.

But Democrats are seething about the Supreme Court’s “shadow docket” opinion, arguing that Trump and the high court are ignoring the intent of the 1974 law designed to prevent presidents from withholding federal cash. And they see themselves as the last line of defense.

“He is unchecked at this point,” Rep. Marcy Kaptur (D-Ohio), another senior appropriator, said of Trump in an interview. “We have to check him. No one should have that kind of power.”

Angus King’s feckless explanation for why he voted with Republicans unintentionally makes the political case why.

[B]y shutting the government, we’re actually giving Donald Trump more power. And that was why I voted yes. I did not want to hand Donald Trump and Russell Vought and Stephen Miller additional power to decimate the federal government, to decimate the programs that are so important to so many people.

Here is what Donald Trump said just this afternoon: ‘We can do things during a shutdown that are irreversible, that are bad for them. He means the Democrats like cutting vast numbers of people out, cutting things that they like, cutting programs that they like. We can do things medically in other ways, including benefits we can cut numbers of people out.’

Maya Angelou once said, ‘If someone tells you who they are, you should believe them.’ Donald Trump, in this quote, tells us what he plans to do if there’s a shutdown and it will not be good for the American people. This was a difficult vote, but in the end, I could not, in good conscience, vote to shut the government down and hand even greater power to the trio of Donald Trump, Stephen Miller and Russell Vought. This was a vote of conscience on behalf of the State of Maine and the people of the United States.

It is absolutely true that Trump gets to decide which government functions are essential and non-essential. It is absolutely the case that ICE will be on the streets even while Courts will soon have to work at a slower pace, meaning it will be harder to get emergency orders preventing imminent harm, as the ACLU was able to do within hours of the March shutdown.

But King is failing basic civics if he thinks this shutdown gives Russ Vought any new power than he had yesterday, any more power than he was usurping yesterday, a point the American Prospect made yesterday.

That Supreme Court ruling involved $4 billion in foreign aid funding that the administration semi-formally tried to rescind; it doesn’t include the $410 billion that the White House has simply withheld from programs across the country. That represents close to half of all outlays in the fiscal year 2025 nondefense discretionary budget, which have simply vanished, perhaps permanently after the last day of the fiscal year, which is today. The Office of Management and Budget, as Rep. Rosa DeLauro (D-CT) has explained, has offered no explanation of how money is being spent or where withheld spending is going.

About 12 percent of the federal workforce has been terminated. Last week, we heard threats from OMB director Russ Vought that a shutdown will really allow the Office of Management and Budget to fire workers. A shutdown provides no actual legal authority to fire federal employees, but then again there was no legal authority to rescind or withhold appropriated spending without congressional approval, or put workers on extended administrative leave, as they did with the unauthorized buyout back in January.

As Daniel Schuman points out, Vought presented guidance to agencies in February that they should prepare for mass layoffs by today, September 30. Any allegedly shutdown-induced “mass layoff” should be seen as the continuation of an existing plan that has been public for seven months.

The larger point is that the government is already shut down, and has been for several months, as the Trump administration initiated an assault on this system of government. Activities deemed “essential” by the president—stalking immigrants, lobbing missiles at Iran, etc.—have gone on, but activities purported to conflict with the president’s policies, regardless of whether they have been authorized by the lawmaking body of the United States, have been stopped, interrupted only by occasional federal courts telling the president that doing so is illegal, which the Supreme Court subsequently brushes aside.

The shutdown can certainly be used rhetorically to justify more firings, but they’re just the same firings with a different rationale, one that is no more legal or legitimate than before. Of course, “legal” and “legitimate” are loaded words given the rubber-stampers at the Supreme Court.

What changes with Trump’s promise that he’s going to start retaliating against Democrats — on top of the fact that 40% of the workers he will be targeting are Trump voters and on top of the fact that the policies he will target are the ones that help average Americans and so are popular — is that to use this as leverage, Trump has to claim credit.

Trump has to make visible all the damage he’s doing to the services government offers.

That doesn’t change the legal reality (that, with SCOTUS’ blessing, Trump is usurping the constitutional powers of Congress). It has the ability to change the politics. It’ll be DOGE all over again, where Elon Musk’s loud bragging about the damage he was doing made him an easy political target.

Now it’s Russ Vought’s turn to become the villain in the popular understanding.

Live by healthcare and die without it

Progressives have hated the Democratic focus on healthcare (and it didn’t even keep all 47 Democratic Senators on board).

But now everyone is stuck with those terms and it is time to exploit it. The longer this shutdown goes, the more obvious the initial effects of the Big Ugly bill in terms of rural hospital shutdowns and expiring subsidies for ACA premiums will become.

It makes it easy to demonstrate — as Tammy Duckworth did here — how badly Republican members of Congress are screwing over their own constituents.

It makes it easy for people to call up John Thune and Mike Rounds, or Bill Cassidy and John Kennedy, or Shelly Moore Capito and Jim Justice, Lummis, or John Barrasso and Cynthia Lummis, or Marsha Blackburn and Bill Hagerty, or Roger Wicker and Cindy Hyde-Smith, or Lisa Murkowski (who voted with Democrats for the first cloture vote on the GOP continuing resolution) and Dan Sullivan and complain about how much they’re fucking them over.

And people in rural states or congressional districts can point to this table and asked their elected representatives why they’re fucking over farmers and ranchers.

It is slightly harder — but totally doable! — to turn right wing messaging back on them.

.

Every single Republican, starting from Trump’s Wormtongue, is claiming that the Americans who rely on ACA are “illegal.” It’s an atrocious claim, and those who do rely on ACA should easily be able to demonstrate how grotesque this is.

If you have a Republican member of Congress, either House or Senate, please take time to — as visibly as possible, whether on Xitter, a poster by their office, over a beer with your MAGAt brother, or at least in a call to their office — to push back on one of these claims. If you rely on ACA, post a picture of yourself with your military medals or your “I voted” sticker. You won’t convince them. You’ll raise the political price of this cynical bullshit.

Finally, if by some miracle Democrats do get enough leverage to force Republicans to negotiate , it could rupture the lockstep unity that Republicans have achieved this year, because right wingers don’t want healthcare subsidies in any case.

The year-end expiration of health insurance subsidies first created under the Affordable Care Act is already splitting the GOP, seeming to vindicate Democrats’ decision to predicate their shutdown messaging on extending the tax credits.

Republican leaders have been trying to punt the issue as they work to force Democratic senators to swallow a seven-week stopgap measure ahead of the midnight deadline, insisting they will not broach the subject while agencies are closed.

But top Democrats said they heard a different message Monday in their Oval Office meeting with President Donald Trump, leaving the sitdown convinced he’s willing to negotiate on the expiring tax credits in the weeks ahead.

That is already raising alarms among conservative Republicans, who despise the 2010 Democratic health care law known as Obamacare and who would be more than happy to see a 2021 enhancement of the premium tax credits sunset cold turkey on Dec. 31.

“The right proposal is to let them expire,” Sen. Rick Scott (R-Fla.) said Tuesday. “It’s been a complete fraud. People don’t even know they have these policies. So the right thing is to let them expire.”

Rep. Chip Roy (R-Texas), a leader of the hard-right House GOP faction, urged party leaders not to cut an “11th hour” deal on “Covid-era inflationary subsidies” in an X post Sunday.

“We’ve never voted for them. We shouldn’t now,” he said. “Do. Not. Blink.”

But Trump — who has veered the GOP away from anti-entitlement rhetoric on programs like Social Security and Medicaid — has not publicly ruled out an extension of the expanded tax credits, which benefit about 20 million Americans. Instead, in recent days, he has kept his public comments focused on purported Democratic efforts to benefit undocumented immigrants, who are already barred from receiving the subsidies.

We’re all stuck with healthcare being the focus of this shutdown. And, like it or not, it provides a number of points of leverage, both for members of Congress but — just as importantly — for citizens to pressure their own members of Congress.

Building malaise

And all this happens on top of building malaise that has — finally!! — led some MAGAts to start souring on Donald Trump. WaPo unpacked some of the reasons why in this profile of two MAGA voters that explores why 25% of Trump voters are angry about his economy. Much of it stems from the way tariffs are making it impossible for these two to run their small businesses, a florist and a funeral parlor.

A quarter of conservative voters disapprove of Trump’s handling of the economy, polling shows, as tariffs upend business and lower-income Americans cut back their spending. And a recent outcry from MAGA voters and influencers over the Epstein files demonstrates the pressure Trump is under to deliver for his base — which the GOP needs to energize and turn out in the 2026 midterms and beyond.

Jessie said she planned to oppose her local congressman in next year’s GOP primary, upset by his stance on the Epstein files, and she wasn’t sure she could trust Trump’s vice president, JD Vance, who many believe will run to succeed Trump.

Carter, 37, who runs the local funeral home, also voted for Trump last year, believing he would be good for the economy. Now tariffs are pushing up prices for one of his suppliers, and Carter isn’t sure how long he can hold off raising his own rates. The tariffs, he said, “seemed unplanned and childish.”

“I’m not an economist,” he added. “Probably going to hurt before it gets better.”

“But we also really don’t have a suggestion on how to fix that,” Jessie interjected. “We don’t understand enough about it.”

But Epstein and Trump’s dangerous foreign policy is another.

But Carter felt sometimes that Trump was too focused on immigration. Jessie listened to influencers such as Joe Rogan, Theo Von and Tucker Carlson, who often aligned with Trump but sometimes voiced concerns: Was it really “America First” for Trump to bomb Iran? Why hadn’t the Trump administration released the full Epstein files? (Officials released some files this year, but critics called them underwhelming.)
Jessie and Carter were sitting in the living room one day in July when Jessie saw a reference on Facebook to Trump’s latest Truth Social post. Republicans and Democrats alike were pressing for more information on Epstein, and Trump was furious.

“Their new SCAM is what we will forever call the Jeffrey Epstein Hoax, and my PAST supporters have bought into this ‘bullshit,’ hook, line, and sinker,” Trump wrote.

“Let these weaklings continue forward and do the Democrats work, don’t even think about talking of our incredible and unprecedented success,” the presidentcontinued, “because I don’t want their support anymore!”

Jessie turned to her husband.

“It’s gotta be fake,” she said.

For as long as the shutdown lasts, Democrats will be able to point to Mike Johnson’s efforts to delay the swearing in of Adelita Grijalva, who would have been the final signature on the discharge petition to force the government to release their files, as part of his effort to cover up for a sex trafficker.

And during the shutdown, there will continue to be disclosures, such as the recent news that Elon Musk, Peter Thiel, and Steve Bannon are all in the Epstein files. Todd Blanche asked Ghislaine Maxwell about Musk (who in any case denies he traveled to Epstein’s island), but did not ask about Thiel and Bannon, suggesting that Thiel’s funding of the sex trafficker may be among the things the Trump Administration is trying to hide. And Tara Palmeri just revealed that the deciding vote in the Senate against releasing the files, Lisa Murkowski, may implicate ties Murkowski has to Ghislaine’s spouse. Just today, WSJ described how many more banks were happy to do business with a convicted sex trafficker after Epstein was convicted.

Then there’s the Argentine bailout. While Treasury has not yet released guidelines on the bailout (it has, however, posted Scott Bessent’s positively craven speech to explain why Javier Milei warranted an Atlantic Council global citizenship award), when Bessent announced the bailout on Xitter, he described that Argentina was “a systemically important U.S. ally,” the kind of language that suggests he can orchestrate this bailout (ahead of an election in 25 days) even in spite of the shutdown.

This is the kind of story that can fester.

As Politico described, Republicans are already outraged that Trump is bailing out Argentina even as Argentina poaches America’s soybean markets (which I emphasized here).

[P]owerful agriculture groups and their Republican allies in Congress are also sounding alarms about the deal.

“Why would USA help bail out Argentina while they take American soybean producers’ biggest market??? We shld use leverage at every turn to help hurting farm economy Family farmers shld be top of mind in negotiations by representatives of USA,” Sen. Chuck Grassley (R-Iowa) said on X Thursday.

Grassley said farmers were “very upset” about Argentina “selling soybeans to China right after USA bail out.”

The American Soybean Association said Argentina, a major agricultural producer, sold 20 shiploads of soybeans to China around the same time Bessent announced the U.S. was exploring a financial package. The transaction was eased by Buenos Aires waiving taxes on its soybean exports. China has turned to other major soybean exporters, such as Argentina and Brazil amid a trade war with the U.S.

The White House directed POLITICO to Trump’s comments in the Oval Office on Thursday, where he said he’d use some of the windfall from tariffs to support U.S. farmers. The White House added that the administration believes an Argentine economic collapse would hurt U.S. farmers more by lowering the price of Argentine agricultural commodities. Treasury did not comment.

A person familiar with the discussions within the Trump administration about Argentina, indicated Milei’s star has dimmed in some corners in the administration. The person, who was granted anonymity to speak freely about the administration’s evolving approach to Argentina, said this policy is being mainly pursued by Treasury and expressed concerns about Milei’s ability to actually lift his country out of its economic doldrums.

“Milei is done politically, his sister is corrupt, his finance minister is an insider trader, and they have pissed away $15 billion in IMF money and $15 billion in central bank reserves propping up a crap currency, and now Treasury wants American taxpayers to double down on stupid,” the person said. The person added that Milei “was a fraud. Came in, betrayed all the conservatives and libertarians that supported him … it’s all a wash.”

Democrats are not letting this one slide. Not only did Elizabeth Warren (predictably) start the pushback on it, but fourteen Democrats, including Schumer, wrote a letter to Bessent making a stink about about it.

American farmers are confronting unprecedented challenges under your sweeping and uncertain trade policies. Across-the-board tariffs are increasing the cost of critical inputs farmers need to produce a crop, like fertilizer and equipment, at the same time retaliatory tariffs are making U.S. agricultural products less competitive and putting key export markets at risk. Nearly 20 percent of U.S. farm production is typically sold to customers abroad. With those markets in jeopardy, farmers and businesses across the agricultural supply chain are now facing falling commodity prices and shrinking profit margins, while farm debt, bankruptcy rates, and distressed operations are rising across the country. Soybean producers have been particularly affected, as China – historically our largest agricultural export market – has purchased no U.S. soybeans since May and bought 51 percent less through July compared to the same period last year.

Despite the crisis facing our farmers, your attention appears to be elsewhere: last Monday, September 22, your Administration announced it “stands ready to do what is needed” to bail out Argentina amidst the country’s economic turmoil. Argentina’s President, Javier Milei, is notably one of your close personal friends and ideological allies and faces a crucial midterm election on October 26.

Immediately following your Administration’s announcement regarding potential U.S. financial support for Argentina, Argentina suspended export taxes on soybeans, corn, wheat, and other agricultural commodities. Argentina’s policy change had immediate consequences for American farmers. Argentine agricultural products are now significantly more competitive on global markets, and Chinese buyers have reportedly purchased up to 40 cargoes of soybeans from Argentina in just one week. Now, even after Argentina suspended its export duties, your Administration is moving full steam ahead with its plans to offer financial assistance to the tune of $20 billion – rewarding a country that has implemented policies that directly disadvantage American farmers in favor of our competitors.

It is unclear why you are choosing to use taxpayer dollars to bolster the reelection campaign of a foreign president while they take steps to undermine U.S. farmers. As the American Soybean Association put it last week: “U.S. soybean prices are falling; harvest is underway; and farmers read headlines not about securing a trade agreement with China, but that the U.S. government is extending $20 billion in economic support to Argentina.”

Rather than reversing course on tariffs or abandoning your plans to bail out Argentina, you are reportedly planning to provide American farmers with an aid package, nominally paid for with tariff revenues. Farmers want fair trade and steady markets, not tariff uncertainty and short-term aid payments. The best way to support American producers would be to end your chaotic tariff policies that are hamstringing farmers in the first place. Meanwhile, your Administration has failed to reach any trade deal with China that would restore market access for U.S. soybean farmers.

Even Ruben Gallego, who didn’t sign the letter, is willing to shittalk about it.

All that’s before anyone looks closely at Bessent’s own personal stake in this bailout, which Judd Legum explained.

Bessent’s announcement had massive economic benefits for one American: billionaire hedge fund manager Rob Citrone, who has placed large bets on the future of the Argentine economy. Citrone, the co-founder of Discovery Capital Management, is also a friend and former colleague of Bessent—a fact that has not been previously reported in American media outlets. Citrone, by his own account, helped make Bessent very wealthy.

Since Javier Milei, a right-wing populist, became president of Argentina in December 2023, Citrone has invested heavily in Argentina. Citrone has bought Argentine debt and purchased equity in numerous Argentine companies that are closely tied to the performance of the overall economy. Due to Argentina’s massive debt load and chaotic economic history — in 2023, Argentina’s inflation rate was over 200% — Citrone purchased Argentine bonds with an interest rate of nearly 20%. (Citrone has declined to detail exactly “how much of the $2.8 billion he manages is invested“ in Argentina.)

Citrone, who is also a minority owner of the Pittsburgh Steelers, is effectively betting on Milei’s right-wing economic program, which emphasizes deregulation and sharply reduced government spending. Citrone viewed “the probability of default as minuscule,” even though Argentina has defaulted on its debts many times in the past.

In the short term, this appeared to be a savvy investment. After taking office, Milei fired tens of thousands of government workers, cut spending on welfare and research, and achieved fiscal balance. Inflation was reduced to around 40%, which spurred economic growth and foreign investment. Argentina’s economic rebound contributed to Discovery Capital’s 52% return in 2024.

Then it all came crashing down.

[snip]

In early September, days before Bessent’s announcement, Citrone purchased more Argentine bonds.

Bessent’s personal and professional relationship with Citrone has spanned decades. In a May 14 appearance on the “Goldman Sachs Exchanges” podcast, Citrone revealed how he delivered a financial windfall for Bessent. They were both working for investor George Soros in 2013 when Citrone convinced Bessent and Soros to bet on the U.S. dollar against the Japanese yen.

[snip]

When Argentina’s economy began to falter in April, it was Citrone who “intervened before Scott Bessent…to advocate for an IMF agreement with Argentina,” CE Noticias Financieras reported. Bessent subsequently played a key role in convincing the IMF to extend a separate $20 billion currency stabilization package. (That package ultimately proved insufficient to stabilize the Argentine peso.)

As Legum describes, there’s also a tie with the much more visible CPAC.

As Gallego made clear: Donald Trump is paying for Argentines to have better healthcare than Americans even while Americans start to go without basic food support. It’s the kind of sell-out that will infuriate Trump’s base.

Finally, consider how a longer shutdown will work.

ICE is funded. Not only would Trump declare ICE essential in any case, many of their operations were funded by the very same Big Ugly bill that cut healthcare.

And so ICE goons will still be wandering the streets, kidnapping people’s grannies, hospitalizing journalists, with their butt cracks and beer bellies creating a spectacle that sours people on ICE. And that will be happening even as people start losing essential benefits.

Nothing will demonstrate more starkly Trump’s — Stephen Miller’s, really — promise of government. Miller wants government to do nothing but kidnap brown people, even as working white people lose their safety net and pay higher prices.

No one knows how this shutdown will go. It truly is unlike any shutdown that has gone before.

But it will serve to make the reality of Trump’s abuse of power visible in a way that has not fully happened yet.

Update: Corrected description of Palmeri’s find about Murkowski. 2nd Update: An now fixed the spelling of her last name.

The site was bolloxed last night and most of the day so I didn’t even get to tailor the videos showing that the kidnapping of Ras Baraka on May 9 was premeditated, but I did want to alert you to this opinion from Reagan appointed senior judge William Young, ruling that Trump’s retaliation against immigrants who speak out for Palestinian rights violates the First Amendment.

The entire 161-page opinion is fashioned as a response to an anonymous postcard Judge Young received while presiding on this case. Young responds to the question, “WHAT DO YOU HAVE?” to respond to Trump’s pardons and tanks.

Alone, my sense of duty. Together, we have … this 161-page opinion.

He ends by returning to his anonymous interlocutor, inviting him or her to see how juries work.

Much of the rest, especially starting on page 148, where he examines whether there is a remedy he can award plaintiffs, catalogues Trump’s harms.

A section describes how Trump ignores mores and pushes and pushes until someone stands up; Young describes how many institutions of Free Speech have caved.

This is indubitably true. The Constitution, our civil laws, regulations, mores, customs, practices, courtesies — all of it; the President simply ignores it all when he takes it into his head to act. A broad swath of our people find this refreshing in what they may feel is an over regulated society. After all, lawyers seem to have a penchant for telling you what you can’t do. President Trump simply ignores them.50

This is not to suggest that he is entirely lawless. He is not. As an experienced litigator he has learned that –- at least on the civil side of our courts -– neither our Constitution nor laws enforce themselves, and he can do most anything until an aggrieved person or entity will stand up and say him “Nay,” i.e. take him to court. Now that he is our duly elected President after a full and fair election, he not only enjoys broad immunity from any personal liability, Trump v. United States, 144 S.Ct. 2312 (2024), he is prepared to deploy all the resources of the nation against obstruction. Daunting prospect, isn’t it?51

Small wonder then that our bastions of independent unbiased free speech –- those entities we once thought unassailable –- have proven all too often to have only Quaker guns.52 Behold President Trump’s successes in limiting free speech -– law firms cower,53 institutional leaders in higher education meekly appease the President,54 media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism.55

50 Let’s be honest. In our secret heart of hearts, many of us are tiny Trump wannabes. After all, who does not feel the urge to stride about, “sticking it to The Man,” wrecking institutions and careers simply because we find them irksome? Most of us, however, ascribe to Shakespeare’s famous adage: “O, it is excellent To have a giant’s strength; but it is tyrannous To use it like a giant.” MEASURE FOR MEASURE, act 2, scene 2.66.

51 The federal courts themselves are complicit in chilling would-be litigants. It is not that we are less than scrupulously impartial. We demonstrate our judicial independence and utter impartiality every day whatever the personal cost. It is, rather that in our effort to be entirely fair, thorough, and transparent, we are slow, ponderously slow. This in turn means we are expensive, crushingly so for an individual litigant. Frequently, the threat of federal civil litigation, however frivolous, is enough severely to harass an individual and cause his submission. The flurry of activity on the Supreme Court’s emergency docket is itself a tacit admission that, when dealing with an administration that is admittedly seeking to “flood the zone,” it needs to intervene to correct rulings that, if not immediately remedied, will remain in effect far too long.

52 A term from our Civil War – logs painted black to look like cannons.

53 But not all of them. See infra.

54 But not all of them. See infra.

55 But not all of them. See infra.

But not all of them.

But not all of them.

But not all of them.

And several pages later, Judge Young describes which law firms, which media outlets, which university, have stood up to Trump’s bullying.

This Reagan appointee ends — just before inviting his anonymous interlocutor to attend a jury trial — by invoking Reagan, and asking whether Trump, whose bullying he has laid out over a dozen pages, is simply counting on American complaisance.

To this delicate task the Court will turn in the remedy phase.

Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.

President Ronald Reagan, Inaugural Address as Governor of the State of California (January 5, 1967).64

I first heard these words of President Reagan’s back in 2007 when my son quoted them in the Law Day celebration speech at the Norfolk Superior Court. I was deeply moved and hold these words before me as a I discharge judicial duties. As I’ve read and re-read the record in this case, listened widely, and reflected extensively, I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message –- yet I fear he has drawn from it a darker, more cynical message. I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.

Is he correct?

It may be bounced on appeal (he cited AP’s challenge to Trump’s sanctions on them, which they lost on appeal).

But the speech is the thing.

Judge Jamel Semper in the LaMonica McIver case has released the videos associated with her motion to dismiss for congressional immunity. 

Video F strongly suggests that someone female ordered Ricky Patel — the person who ultimately arrested Ras Baraka — to “grab” the Mayor even before he was told he was trespassing. 

0:45, Ricky Patel says, “I’m going to walk right to the Mayor now.”

1:06 of Video F, Ricky Patel says, “you know me, I’m not saying no to shit.”

At 2:14, someone else says, “She wants to grab him.”

Only after that did Patel say, “How did the Mayor get in here?” after which a DHS employee made a baseless claim about how it happened.

In less than 30 seconds after engaging the Mayor, Patel threatened to arrest him for trespassing, in response to which one of Baraka’s aides said, “we got invited in,” which DOJ now concedes to be true.

In the middle of it, Patel gets a call. He sees who is calling. At first he doesn’t answer. Then seconds later he answers the call. After Patel gets off the phone, he calls Bonnie Watson Coleman, “Ma’am,” after which she corrects him, “Congresswoman.” When Patel orders Baraka to put his hands behind his back, Watson Coleman says “we’ll be your eyes and ears.” Both Congresswomen say, “calm down.”

Exhibit B is the one that shows Patel ordering others to prepare to arrest Baraka, “even though he stepped out.” Meanwhile, one of the ICE officers is arming himself, and another one mocks him for it. Another asks, “they really wanted to just come here to see a tour of the facility?”

1:16: I am arresting the Mayor, so.

1:16: 30: I got it, I got it. We’re taking him right now.

1:16:50: I’m going to take him right now.

[Hangs up phone]

1:16:55: Okay, even though he stepped out, I’m going to put him in cuffs. 

1:17: Guys, listen to me. We’re going to walk out of the gates. I’m going to place the Mayor in handcuffs. We are arresting the Mayor, per the Deputy Attorney General of the United States. Anyone who gets in the way, I need you guys to get me a perimeter. 

1:17:30: I already told him on camera that he was under arrest, we’re going to place him under arrest.

[They arm themselves some more.]

1:20, after the arrest, McIver: You assaulted me. I am filing a complaint.

Even before anyone from ICE engaged with the Mayor, “She” ordered Ricky Patel to “grab him.” 

Is the spectacular nature of Stephen Miller’s ICE goons — and the ease with which that can go viral — one of the reasons Miller’s core issue is weighing Trump down?

Greg Sargent has been focused on Trump’s collapse on immigration for months, encouraging Dems to attack on it. And G. Elliott Morris has been tracking the details of that in polling, which also goes back months.

A new report from Gallup out this week finds a significant increase in the public’s liberal attitudes on immigration. The highlights of their report are here:

• 30% of Americans want immigration decreased, down from 55% a year ago
• A record-high 79% of adults consider immigration good for the country
• There’s been a meaningful decrease in support for building a border wall, mass deportation

But aside from Morris’ argument, in June that the inflection point was the Kilmar Abrego case, I’m not sure either has unpacked why immigration has become such a bad issue for Trump (though some of it stems from Latinos souring on Trump), a trend that has continued even as Abrego’s case has gotten far less attention.

I’ve been formulating this hypothesis in conjunction with two posts I’m writing, one about Stephen Miller’s strengths and (very considerable) weaknesses, and another about the pivot to crime that Miller is attempting in the wake of Charlie Kirk’s death. Stephen Miller is effectively running the government, Trump’s Wormtongue, his issue is immigration, but the issue is dragging Trump down.

Miller fancies himself as a propaganda genius and he certainly has had his successes. The speech he wrote for January 6 almost got Mike Pence killed, after all!

But something that has happened with immigration has undercut Miller’s normal propaganda success on his most cherished issue (in reality, as I’ll show, Miller has serially failed with immigration, but succeeded wildly last year).

I’ve written and spoken about the import of mob trolls to Trump’s political rise. Stephen Miller has been central in that use of trolling. Democrats have utterly failed to respond functionally, usually leaving them unable to reach broad swaths of disaffected Americans or counter extremist pro-Trump propaganda like Miller’s.

Miller’s propaganda strategy to boost ICE has played to some of that:

• Non-stop DHS posts — almost all full of lies — that focus on the few spectacular cases of migrant crime in attempt to brand all migrants with the crimes of a few (ironically,  Alex Padilla was calling out this strategy when Kristi Noem’s goons assaulted him)
• An attempt, which has largely flopped, to brand ICE squads in spectacle or to set up spectacular events (like the invasion of McArthur Park in Los Angeles, which looked ridiculous)
• The use of troll mobs and right wing propagandist ride-alongs to eroticize ICE patrols in cities
• The attempt to brand Democrats as pro-crime

As noted, several of these efforts have largely failed. The ICE spectacle, often featuring Kristi Noem as the figurehead, often look ridiculous and have repeatedly led to blowback (such as her staged visit to CECOT or a recent Chicago raid that resulted in the detention of two American citizens, along with some others). The attempt to eroticize ICE raids often looks pathetic.

Meanwhile, while Miller attempts to create spectacle to eroticize ICE goons, bystanders continue to capture his goons rolling around on the ground violently abusing people, and in this particular case, desperately losing his gun. They capture people shaming ICE agents. A latest video shows a food delivery guy riding away after 8 heavily armed men chased him for saying something. And those — not Miller’s fancy new trucks — are what go viral on social media.

Those viral posts are not the only reporting that makes Miller’s goons unpopular. There really is a lot of good individual reporting on the individual stories of people sucked up in the dragnet, the kind of persistence that enabled Abrego and the Venezuelan concentration camp deportees to reach broader political salience (and with it, political headaches for Trump). Legal reporting makes the larger system visible and magnifies outcomes. While journalism is hollowed out, both the rising outlets and traditional media are still telling this story well, often persisting with the stories of individuals sucked up in the ICE dragnets that emphasizes their humanity and reveals their legal outcome. And there are some exceptional journalists at outlets we’ve long given up on.

There are, to be sure, some wraparound policy issues that the Democratic Party needs to push better, focusing on the way that Miller’s ICE raids have contributed to housing market problems and food inflation, or visualizing what government could be spending all the money wasted on ICE, for example. There are some NGOs and, especially, policy work from CATO that should be magnified (this was actually something Pramala Jayapal did in a recent shadow hearing).

But all of it starts from the people — both private citizens and independent journalists — witnessing, filming, and posting ICE thugs. They not only create an inexcusably endless supply of new stories of abuse to expose, but they fill the social media space Miller would prefer to fill with staged ICE spectacle. Rather than eroticized violence, what gets seen is spectacle that makes his goons look fat, incompetent, and pathetic.

Butt cracks and beer bellies.

The spectacle Miller’s poorly-trained goons have created has filled the media space he would otherwise fill with staged brown person domination porn.

None of this solves the political problem of a fascist building power off the demonization of immigrants. But the unpopularity of it creates political opportunities.

So it’s worth mapping out what combination of mobile witness and compelling journalism has made that possible.

As I mentioned here, ABC reported that the lie charged in the Jim Comey indictment pertains to whether he authorized Dan Richman to share information anonymously, not whether he authorized Andrew McCabe to do so.

Sources told ABC News that “PERSON 1” is Clinton and “PERSON 3” is Richman, a longtime law professor who — as ABC News previously reported — met with federal prosecutors last week after being subpoenaed in the matter.

Charlie Savage has the best piece on the likely theory of the indictment. I’d like to expand on that to explain why I think it more likely we’ll obtain proof that Kash Patel lied to Congress as a result of this prosecution than that Jim Comey did.

As you read the following remember that Kash assured the Senate Judiciary Committee — including in this exchange with Mazie Hirono — that he would not “go[] backwards” to investigate Jim Comey.

Senator Hirono (02:18:49):

Do you plan to investigate James Comey, who’s on your list?

Kash Patel (02:18:54):

I have no intentions of going backwards-

Except it appears that Kash did precisely that.

The indictment appears to accuse Comey of authorizing Dan Richman to serve as a source for this article on the Hillary and Trump investigations, especially this passage about the SVR document purporting to report that Loretta Lynch had told Amanda Renteria she would intervene to protect Hillary (the charge the grand jury rejected was also focused on these SVR documents, which I explained here).

During Russia’s hacking campaign against the United States, intelligence agencies could peer, at times, into Russian networks and see what had been taken. Early last year, F.B.I. agents received a batch of hacked documents, and one caught their attention.

The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.

Read one way, it was standard Washington political chatter. Read another way, it suggested that a political operative might have insight into Ms. Lynch’s thinking.

Normally, when the F.B.I. recommends closing a case, the Justice Department agrees and nobody says anything. The consensus in both places was that the typical procedure would not suffice in this instance, but who would be the spokesman?

The document complicated that calculation, according to officials. If Ms. Lynch announced that the case was closed, and Russia leaked the document, Mr. Comey believed it would raise doubts about the independence of the investigation.

[snip]

But some time after that meeting, Mr. Comey began talking to his advisers about announcing the end of the Clinton investigation himself, according to a former official.

“When you looked at the totality of the situation, we were leaning toward: This is something that makes sense to be done alone,” said Mr. Steinbach, who would not confirm the existence of the Russian document.

Former Justice Department officials are deeply skeptical of this account. If Mr. Comey believed that Ms. Lynch were compromised, they say, why did he not seek her recusal? Mr. Comey never raised this issue with Ms. Lynch or the deputy attorney general, Sally Q. Yates, former officials said.

Importantly, Richman was a named source for the story, which will make it hard to prove that Comey authorized Richman to serve as an anonymous source. (Hilariously, Pat Fitzgerald’s meticulous mapping during the Scooter Libby trial of the difference between an “anonymous” source and a “background” source might, by itself, defeat this case.)

As part of an investigation into the sources for this story (which targeted Jim Baker closely), John Durham seems to have discovered either details of how the FBI authorized people to weigh in on stories or that Dan Richman served as a cut-out for Comey, I’m not sure which.

The reopened Arctic Haze investigation was biased against Comey

That discovery led DOJ to reopen a bunch of investigations into 2017 stories pertaining to the Russian investigation, documented in these filings, which I wrote up here.

As part of that, DOJ investigated whether Richman was the source for the SVR details in the April 2017 NYT story. Before closing the investigation, DOJ asked Comey for the phone he used at the time, and found nothing relevant.

[redacted] on June 29, 2021, Comey provided consent, via his counsel, for the FBI to conduct a limited search of his Apple iPhone. The FBI conducted a forensic examination of the telephone. The examination indicated the telephone contained four voicemail messages, four instant messages, two email messages, and 51 images from December 1, 2016 to May 1, 2017. None of this material contained information relevant to this investigation.

They also interviewed Richman, who among other things, told the FBI that, “Comey never asked him to talk to the media” (though it appears earlier, as described in redacted passages, he may have said Comey did).

The substance of the November 2019 Richman interview confirmed that Comey had told Richman bits about the SVR documents, but that when Mike Schmidt came to Richman and asked him about it in January 2017, Schmidt already knew more about the documents than Richman did.

On November 22, 2019, the Arctic Haze investigative team interviewed Richman. According to Richman, Comey and Richman talked about the “hammering” Comey was taking from the media concerning his handling of the Midyear Exam investigation. Richman opined Comey took comfort in the fact Richman had talked to the press about his feelings regarding Comey’s handling and decision-making on the Midyear Exam investigation. Richman claimed Comey never asked him to talk to the media.

According to Richman, he and Comey had a private conversation in Comey’s office in January 2017. The conversation pertained to Comey’s decision to make a public statement on the Midyear Exam investigation. Comey told Richman the tarmac meeting between Lynch and Clinton was not the only reason which played into Comey’s statement on the Midyear Exam investigation. According to Richman, Comey told Richman of Lynch’s characterization of the investigation as a “matter” and not that of an investigation. Richman recalled Comey told him there was some weird classified material related to Lynch which came to the FBI’s attention. Comey did not fully explain the details of the information. Comey told Richman about the Classified Information, including the source of the information. Richman understood the information could be used to suggest Lynch might not be impartial with regards of the conclusion of the Midyear Exam investigation. Richman understood the information about Lynch was highly classified and it should be protected. Richman was an SGE at the time of the meeting.

According to Richman, he and Schmidt had a conversation shortly after the meeting with Comey in or around January 2017. Richman claimed Schmidt brought up the Classified Information and knew more about it than he did. Richman was pretty sure he did not confirm the Classified Information. However, Richman told the interviewing agents he was sure “with a discount” that he did not tell Schmidt about the Classified Information. Richman did not know who gave Schmidt the Classified Information. Richman acknowledged he had many discussions with Schmidt about the article as an SGE and even after he resigned as an SGE. Richman acknowledged he contributed more to the article than what was attributed to him by name. Richman also stated he knew Schmidt talked to numerous other government sources for information on the article. [my emphasis]

DOJ ultimately decided they couldn’t charge either Comey or Richman, because even if Richman were a source, he would be a confirmatory source, which DOJ had never charged (they claim, though I think that’s incorrect).

They did some more interviews but — and this may sink EDVA’s case even if everything else doesn’t — they only interviewed people who would have a motive to protect Comey, not those with a motive to slam him.

After discussing the status of investigative leads and resources available with the U.S. Attorney’s Office and Department of Justice’s National Security Division (DOJ NSD), the FBI investigative team was directed to interview only those officials who might have had a motive to protect Comey. Therefore, the FBI only interviewed eight of these officials who consisted mainly of former FBI officials. All of these officials denied providing the Classified Information to the New York Times. [my emphasis]

At a time when they could have charged this, Bill Barr’s DOJ assumed that the original detailed sources for the SVR story must be Comey allies.

There are at least two reasons why that was a dumb theory.

First, as the DOJ IG Report on this that investigators read — but didn’t explain in the unredacted parts of the case file — Comey and people around him believed the claims in the document were “objectively false” Comey even alluded as such in his 2018 OGR testimony (also cited in this closing document) — which Kash Patel would know personally. “So far as I knew at the time, and still think, the material itself was genuine, which is a separate question, though, from whether it was what it said was accurate.”

This entire passage is premised on the document being true.

More importantly, the sources for it are pissed off that Jim Comey announced the end of the Hillary investigation himself.

Plus, there’s no mention that one of these two SVR documents said that Jim Comey was going to throw the election for the Republicans. If someone were really familiar with the documents themselves, rather than just discussions of them, you’d expect they would suggest that maybe Comey was overcompensating out of worry that he would be deemed partial to Republicans.

The blind spot about that part of the SVR documents, notably, is replicated in the HPSCI document on which Kash was the original author.

HPSCI simply leaves out the Jim Comey allegation in one of the SVR reports, which if true, would explain why Putin wouldn’t have to (and didn’t) dump damning intel close to the election: Because Putin believed that “Comey is leaning more to the [R]epublicans, and most likely he will be dragging this investigation until the presidential elections,” something that turned out to be true. In other words, they cherry pick which Russian spy products they choose to parrot, one of the sins they accuse the ICA team of, but they do so with years of hindsight that made clear how foolish that was.

The entire right wing, including the current FBI Director, have vast blindspots about these documents (Kash even seems to believe they’re not fabricated!!). And those blindspots appear to have been replicated in the investigative choices for that investigation. That means the selective prosecution of this prosecution is built on top of the selective investigation of the Richman investigation.

Nevertheless, the investigation was closed without charging Richman for confirming classified details.

Kash did look backward

Where this becomes proof that Kash lied to the Senate Judiciary Committee, claiming that “I have no intentions of going backwards” to investigate Comey is that there’s no reason to reexamine the issue (except that Comey answered a question focused on Andrew McCabe on which the statute of limitations has not yet expired).

The leak itself, if it could be pinned on Comey and Richman, could not be charged. Bill Barr did not reopen the investigation after seeing Comey’s September 2020 testimony, even though he remained busy trying to discredit Crossfire Hurricane.

While investigators this time around are chasing a parallel theory that the FBI covered up their focus on SVR documents that only exists in the fevered imaginations of people like Kash (that is, if Comey actually lied about any of this it would be material to their fevered conspiracy theories in the other part of the investigation), it would not have been material at the time, because Ted Cruz was seeking a gotcha about his fevered imagined conflict between McCabe and Comey’s testimony. The underlying 2017 question from Grassley incorporated Richman, but if Cruz’s did, there’s no hint of that. He explicitly focused on McCabe.

Nor would it be material to the Durham investigation. The Durham Report actually says that Comey refused to be interviewed, pointing instead to testimony just like this. So if there’s something in this exchange that would be usable, Durham didn’t do so.

Nevertheless, somehow, the FBI decided to go revisit this gotcha question from five years ago, which — even if Comey were lying — would not change the public understanding of Comey’s self-righteous justifications for his decisions in the Clinton investigation one bit. Outside the fevered imagination of people like Kash, or the decision to look backward to investigate a guy listed on your enemies list, there’s no reason you get to these files.

Now, Comey may have opportunity to ask Kash, under oath, how the FBI decided to go unpack the closing file for an investigation closed over three years earlier — which is why I say we may get proof that Kash lied to SJC.

But the only new information that I could conceive of that would lead the FBI to reconsider this is if the FBI spied on the NYT and found materials from Mike Schmidt saying that Richman was his source and Comey told him to leak it. Which, if it happened, would be a ten times bigger scandal than we’ve already got.

I would be shocked if Comey didn’t ask for some explanation — other than the revenge to which Trump confessed publicly — behind the predication of this investigation. I would be unsurprised if Judge Michael  Nachmanoff, who is presiding over the case, offered him that opportunity.

And if he does, Kash is going to be stuck trying to make up some excuse that doesn’t amount to a confession he lied, as a private citizen, to SJC as part of his effort to get the job he’s using to weaponize government against Trump’s enemies.

Kash Patel wrote a book in 2023 targeting Jim Comey.

When asked whether he intended to use the FBI Director position to investigate Jim Comey, Kash claimed, under oath, that he had no intentions of going backward to do so.

And then he proceeded to do just that.

The evidence that Comey lied to the Senate Judiciary Committee is paper thin.

The evidence that Kash lied to the Senate Judiciary Committee is abundant.

And here’s the picture of Scattery Island I referenced. Here’s a story about Moneypoint halting coal burning.

Listen on spotify (transcripts available)

Listen on Apple (transcripts available)

Let’s talk about all the lies that someone at EDVA would have to wade through to actually convict Jim Comey.

Lindsey Halligan’s disclaimer of signing the Comey indictment

First, there’s the weirdness with the indictment itself. As NBC and WaPo reported from the courtroom, Lindsey Halligan actually handed the magistrate judge, Lindsey Vaala, two charging documents. When Vaala asked what was going on, Halligan said she did not see the second one. Vaala noted that she had signed the document.

There was some confusion in the courtroom and from Judge Lindsey Vaala, who appeared puzzled by the multiple charging documents filed for one case. Vaala asked why there were two documents in the same case. Halligan told her, “I did not see,” to which Vaala replied, “It has your signature on it.”

Vaala then had Halligan make handwritten changes to one of the documents and said both documents would be uploaded to the docket for the record.

That may well lead to further scrutiny. One of the two charging documents is the indictment that includes the charge that grand jurors rejected.

But the only writing on either document that appears to have been added is where (marked with the red box) someone noted, “count 1 only” (which is, indeed, the charge that was dropped). But there’s another irregularity with the document. The rest of it (and the indictment that was filed) looks like it was scanned — with a line down the center and a shadow, as I’ve marked in red.

But the second page lacks both of those things.

And both the charge on page two and the one on page three are called, “COUNT TWO.” Which may suggest someone just put the second page of the failed indictment in between the two pages of the one approved by the grand jury.

All that’s enough that Comey might ask questions about the conduct of the grand jury — something he normally would not be able to do. Given Halligan’s claim she never saw the indictment, it also might raise questions about whether Halligan signed the indictment before or after the grand jury approved it.

And then Halligan would have to explain why she never saw the indictment that she herself signed. Because she’s the only attorney on this filing, she would have to explain the irregularities herself.

That’s not the only question Halligan will face.

It’s not entirely clear under what legal authority she is play-acting as US Attorney. But when Alina Habba was challenged for play-acting as US Attorney after her temporary period expired in New Jersey, a judge ruled that the interim appointment is per position, not per person, meaning that Erik Siebert — the guy Trump fired on Friday — would already have used up the possibility of such an interim appointment in May.

In other words, Halligan may not be US Attorney at all, and unless she fixed that problem by Tuesday, the entire thing might just disappear.

In any case, while EDVA has a rocket docket (meaning this would otherwise go to trial quickly), Halligan’s temporary status could become be a problem before this goes to trial if Comey mounts a vindictive prosecution challenge (LaMonica McIver’s vindictive prosecution challenge is only now fully briefed, three months after her indictment). Then EDVA could be left with an indictment charging Jim Comey but no one willing to stand in a courtroom to prosecute it.

The vindictive prosecution challenge

Even if Halligan survived that long, it is exceedingly likely that Comey would not just get to present a vindictive prosecution claim, which Trump has confessed to over and over, but also to ask for discovery on how that all came about. If granted, I’m sure he’d ask to:

• Depose Kash Patel, both about his children’s book naming Jim Comey a “government gangster” but also his conduct in this and related Comey investigations.
• Depose Siebert, who decided there wasn’t even probable cause to charge this, much less the ability to prove it beyond a reasonable doubt.
• Depose Todd Blanche, who reportedly agreed with Siebert and advised Trump not to fire Siebert.
• Depose Pam Bondi because why the fuck not??
• Depose Halligan.

Just deposing Kash alone would be a huge problem, because he only got confirmed by lying to the Senate about prosecuting the people in his Government Gangster book.

This indictment proves Kash lied, not that Comey did.

It proves something else, too.

Halligan tried to charge Comey with two lies. I’ll come back to the one that survived — basically, the indictment accuses Comey of lying in 2017 when he said he had never authorized anyone to leak information anonymously to the press.

The Russian disinformation that Chuck Grassley falsely claimed was a Clinton plan

The one the grand jury rejected charged Comey with lying when he said he didn’t recall being told (which the indictment transcribes as “taught”) this memo.

There are multiple problems with the question — posed shortly after Kash Patel and John Ratcliffe released it in 2020.

First, we now know that the “plan” was in fact Russian disinformation sown by fabricating several emails. Investigating based off this document commits precisely the crime that John Durham investigated for years: investigating someone based on something you know to be false.

Worse still, according to every witness that Durham interviewed, no one remembered receiving this memo at all. It’s possible Kash thinks he has found a copy (that seems to be part of what he’s investigating in WDVA), but Durham never did.

Finally, and most insane of all, as I noted here, the redactions in this document and the representation Kash and Ratcliffe made about what it is appear to be badly misleading. That is, this referral appears to be a referral about the Russian plot targeting Hillary, not about Hillary. It is only right wing fever dreams and deceitful redactions that made it into something else.

If Comey had seen this document, he would not remember it in the way that he was asked about it.

So not only is it ridiculous to charge someone for not remembering something that wasn’t that big a deal, but it’s crazier still to charge someone for not remembering a document that you’ve redacted in misleading fashion and then described as the opposite of what most people understood it to be.

All that wasn’t charged, but nevertheless, according to John Durham’s logic at least, Kash committed several crimes by investigating this at all.

Jim Comey will get to expose Ted Cruz as a liar, again

Which finally brings us to what did get charged, part of the exchange above.

1. On or about September 30, 2020, in the Eastern District of Virginia, the defendant, JAMES B. COMEY JR., did willfully and knowingly make a materially false, Fictitious, and fraudulent statement in a matter within the jurisdiction of the legislative branch of the Government of the United Stales, by falsely stating to a U.S. Senator during a Senate Judiciaiy Committee hearing that he, JAMES B. COMEY JR., had not “authorized someone else at the FBI to be an anonymous source in news reports” regarding an FBI investigation concerning PERSON 1.

2. That statement was false, because, as JAMES B. COMEY JR. then and there knew, he in fact had authorized PERSON 3 to serve as an anonymous source in news reports regarding an FBI investigation concerning PERSON 1.

Before Cruz asks the question that got charged, he asked one after another question based on false premises. Comey had to correct the following Cruz lies:

• The FBI did not surveil the Trump campaign
• The Carter Page IG Report did not show that FBI lied to the FISC 17 times
• Cruz misrepresented the email that Kevin Clinesmith altered (it was not used in any submission and Cruz misstated the import of the change)
• The FISC was alerted to the political source of the Steele dossier
• Cruz falsely claimed that Comey stated that the FISC was informed that the DNC paid for the dossier
• Cruz misstated what Comey said about his own knowledge about the funding

Cruz also misstated the facts about Igor Danchenko, but Comey didn’t know enough to correct those.

The actual charged lie starts after 6:30 in the video. Cruz reads Comey’s testimony from 2017, in which he responded to a question from Chuck Grassley whether he had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?”

Cruz then made another misstatement — three actually, that Andrew McCabe, “has publicly and repeatedly stated that he leaked information to the Wall Street Journal and you were directly aware of it and that you directly authorized it.”

Comey did not correct Cruz this time, but he said he stood by the testimony he gave in 2017.

Already, what Lindsey the Insurance Lawyer said in the indictment is a stretch. Comey did not say the words quoted in the indictment. He said only he stood by his earlier testimony. (Effectively, this is an attempt to charge Comey for something he said 8 years ago.)

If she’s thinking this is about McCabe, it also builds on Ted Cruz’s lie. First of all, the IG Report on McCabe (and his public comments) was about the Clinton Foundation — not Clinton, but the Foundation, not Person-1 but the foundation ran by her spouse.

Second, it was not a leak, anymore than Kash Patel’s non-stop frequently inaccurate blabbing on Xitter amount to leaks. It was an authorized conversation with the press.

Third of all, the specific authorization in this case was from McCabe to Lisa Page to serve as a source; it didn’t involve Comey.

McCabe thereafter authorized Special Counsel and AD/OPA to talk to Barrett about this follow-up story.

Where McCabe’s testimony differs from Comey’s is about what McCabe said to Comey after the fact. McCabe said that he told Comey and Comey thought it was a good idea.

McCabe said that he told Comey that he had “authorized AD/OPA and Special Counsel to disclose the account of the August 12th call” and did not say anything to suggest in any way that it was unauthorized. McCabe told us that Comey “did not react negatively, just kind of accepted it.” McCabe also told us Comey thought it was a “good” idea that they presented this information to rebut the inaccurate and one-sided narrative that the FBI was not doing its job and was subject to DOJ political pressure, but the Department and PADAG were likely to be angry that “this information made its way into the paper.” McCabe told us that he did not recall telling Comey prior to publication of the October 30 article that he intended to authorize or had authorized Special Counsel and AD/OPA to recount his August 12 call with PADAG to the WSJ, although he said it was possible he did.

Comey said when he spoke to McCabe about the story afterwards, McCabe denied knowing the source.

Comey told us that, prior to the article’s publication, he did not have any discussions with McCabe regarding disclosure of the August 12 PADAG call. According to Comey, he discussed the issue with McCabe after the article was published, and at that time McCabe “definitely did not tell me that he authorized” the disclosure of the PADAG call. Comey said that McCabe gave him the exact opposite impression:

I don’t remember exactly how, but I remember some form or fashion and it could have been like “can you believe this crap? How does this stuff get out” kind of thing? But I took from whatever communication we had that he wasn’t involved in it. . . . I have a strong impression he conveyed to me “it wasn’t me boss.”

Importantly, Comey disavowed any conversation with McCabe about this particular story before the fact.

Comey told us that, prior to the article’s publication, he did not have any discussions with McCabe regarding disclosure of the August 12 PADAG call.

That’s consistent with what McCabe said.

that he did not recall discussing the disclosure with Comey in advance of authorizing it, although it was possible that he did;

What McCabe has said elsewhere is that Comey had generally permitted just the two of them to speak with the press. But that was not specific to this story at all.

In other words, Ted Cruz got it wrong. Comey’s testimony to the Senate — which on follow-up was specifically about the WSJ story — was utterly consistent with McCabe’s.

Cruz lied. Comey didn’t.

Now it’s possible that Lindsey the Insurance Lawyer is attempting a gimmick, by claiming that Comey authorized Dan Richman to share information about the Hillary investigation (we know this is about Hillary because she is Person-1 in the charge the grand jury rejected). That is, Lindsey the Insurance Lawyer may be trying to apply this Comey answer to Richman.

Except — even assuming he had spoken to Richman about Hillary (the right wing belief, until Richman’s testimony in the last few weeks, is that Comey authorized Richman to talk about the Trump investigation) — Comey could easily say his answer here was about the McCabe reference. [Update: ABC is reporting that it is Richman.]

But if this thing were ever to go to trial — if Lindsey the Insurance Lawyer is really the US Attorney, if the indictment really is what the grand jury approved, if this doesn’t get booted on a vindictive prosecution claim, if Pat Fitzgerald fails to argue that Lindsey the Insurance Lawyer is confused about which FBI Director is a criminal — Comey can almost certainly call Teddy Cancun as a witness, at least to testify about materiality.

It would soon become clear that Comey’s answer, even if it were a lie, could never be material, because Ted Cruz was going to believe what he already believed. Cruz was committed to his false beliefs, no matter what Comey said in response.

But under questioning by a skilled attorney — and Fitz has questioned far bigger blowhards than Ted Cruz, if you can believe it — such testimony would force Cruz to either double down on his lies, or to confess he was the one lying all those years ago.

Right now, there’s not a shred of evidence that Comey lied in his statement.

There is, however, abundant evidence that Kash lied under oath and that Cruz lied in the same way he lies all the time. And if this were ever to go to trial, Cruz would, for once, have the opportunity to face consequences for any lies he told.

Update: CBS got the transcript of the exchange between Lindsey the Insurance Lawyer and Lindsey the Magistrate Judge. It seems clear that the Insurance Lawyer juggled her papers.

[T]wo versions of the indictment were published on the case docket: one with the dropped third count, and one without. The transcript reveals why this occurred.

“So this has never happened before. I’ve been handed two documents that are in the Mr. Comey case that are inconsistent with one another,” Vaala said to Halligan. “There seems to be a discrepancy. They’re both signed by the (grand jury) foreperson.”

And she noted that one document did not clearly indicate what the grand jury had decided.

“The one that says it’s a failure to concur in an indictment, it doesn’t say with respect to one count,” Vaala said. “It looks like they failed to concur across all three counts, so I’m a little confused as to why I was handed two things with the same case number that are inconsistent.”

Halligan initially responded that she hadn’t seen that version of the indictment.

“So I only reviewed the one with the two counts that our office redrafted when we found out about the two — two counts that were true billed, and I signed that one. I did not see the other one. I don’t know where that came from,” Halligan told the judge.

Vaala responded, “You didn’t see it?” And Halligan again told her, “I did not see that one.”

Vaala seemed surprised: “So your office didn’t prepare the indictment that they —”

Halligan then replied, “No, no, no — I — no, I prepared three counts. I only signed the one — the two-count (indictment). I don’t know which one with three counts you have in your hands.”

“Okay. It has your signature on it,” Vaala told Halligan, who responded, “Okay. Well.”

Probably, nothing will come of it. Probably, the only price Lindsey the Insurance Lawyer will pay for this is 1) disclosure of the no bill record 2) exposure of the charge grand jurors refused and 3) humiliation in her first big show.

But it creates surface area and, as I suggested, the possibility that Comey will use it to pierce the secrecy of everything else that went on in the grand jury, including why it took until 6:47 to indict this.