Merry Christmas to you and your families. May you find some spot of brightness in these choppy times.

I’m the rare person who argues that ABC’s decision to settle Trump’s lawsuit has, at least, some legal explanation. The judge in the case seemed sympathetic to Trump’s argument. George Stephanopoulos did misstate what the jury–as distinct from Judge Lewis Kaplan–said. ABC would not be the first major media outlet to settle a lawsuit before one of its star personalities had to sit for a deposition; Fox always settles before Hannity gets deposed, for example.

This, from Andrew Torrez and Liz Dye, is a good write-up.

But — ironically — WaPo’s inclusion of the ABC settlement in a story billed in its subhead as a description of how Trump will “will ramp up pressure on journalists” betrays a larger, different problem.

Oh sure, it included that legal explanation.

Continuing with the case might have made public any damaging internal communications to and from Stephanopoulos. If the case made it to trial, it would face a jury in Florida — a red state that Trump carried by 13 points — that could side with the president-elect and award a penalty that could easily exceed the price of a settlement. Appeals to any decision would last for years and risk reaching the Supreme Court, where two sitting justices have already expressed their desire to weaken the court’s landmark decision that has protected the American media’s ability to report aggressively on public figures, especially officials, in the public interest.

But before it got there, it described a bunch of other vulnerabilities, most of which have little to do with journalism.

ABC News’s decision to settle has sent shudders through the media industry and the legal community that represents it. According to three people familiar with the company’s internal deliberations who spoke on the condition of anonymity because they were not authorized to discuss legal strategy, ABC and Disney executives decided to settle not only because of the legal risks in the case but also because of Trump’s promises to take retribution [sic] against his enemies.

[snip]

Disney conducts business in more than 130 countries and employs roughly 225,000 employees — a virtual nation-state with corporate shareholders it is legally obligated to consider when making strategic decisions. The executives reasoned that being in active litigation with a sitting president could hamper the business.

Disney’s ABC operates more than 230 affiliate television stations nationwide, some relying on the Federal Communications Commission for license renewals. Trump has repeatedly talked about pulling the federal licenses from television stations that broadcast news about him he doesn’t like and said last year that he plans to bring the FCC under presidential authority.

Disney and many other media companies are already planning potential merger activity that executives hope passes muster with the antitrust division of the Justice Department, which is poised to be run by Trump loyalist Pam Bondi. Disney pumps out movies and television shows that it needs to appeal to the millions of people who voted for Trump and have already shown themselves willing to boycott products he attacks.

These are:

• Disney’s obligations to shareholders require that it weigh the impact the lawsuit will have on the larger 225K person company.
• Its 225 TV stations, and their periodical license renewals, make it vulnerable to the whims of the FCC.
• Disney has other corporate acquisitions planned that might be subject to antitrust review.
• Disney’s movies must not only appeal to Trump supporters, but withstand boycotts from them.

Some of this — the need to sell Disney movies and the past tussle with Ron DeSantis — appears in the NYT story that (as WaPo notes) first confirmed Bob Iger’s personal involvement. It is consistent with what others have said about how the lawsuit fits into ABC’s larger corporate perspective.

But it included more, such as the bit about how ABC caved because it has corporate acquisitions that could be vetoed by Pam Bondi’s DOJ.

It’s not the details of this that I find curious.

It’s that a media reporter and a democracy reporter working for Jeff Bezos did not distinguish the things that are journalism (at a stretch, the ABC licenses) from what is not (the action hero movies and other corporate acquisitions).

Indeed, the article generally does not maintain a distinction between its discussion of press freedoms and media corporations. The word “press” appears 13 times (including in the subhead, which the journalists would not have written, and four times in two quotes apiece from cited experts). The word “media” appears 15 times (including in the heading and a caption and several times as an adjective in a title). The word “journalist” shows up just four times, twice in a discussion of how past presidents (Nixon and Obama) cracked down on journalism, once referring to talking head Chuck Todd.

Without reflection, it treats the plight of giant media companies as the same as its impact on journalism.

The article adds a few new details about why a corporation built off nearly a century of Intellectual Property protection for a cartoon mouse settled a lawsuit. But it doesn’t lay out the obvious implication of the story it tells: that ABC was vulnerable to Trump’s attack not, primarily, because of its journalism — because of what Stephanopoulos said — but instead because the mouse company is not primarily interested in journalism.

That is, it is precisely Disney’s size and scope that rendered it vulnerable to Trump’s threats.

That’s not a novel discovery: that multinational corporations that happen to own journalistic outlets have interests that conflict and undermine their journalism. But as we discuss how to protect journalism while Trump tries to neuter it, it is an important reminder. Even Trump’s lawsuit against the Des Moines Register pits Gannett’s interests against Ann Selzer, though at least Gannett is primarily a journalistic outlet.

For a corporation like Disney — or an oligarch like Jeff Bezos — it’s the other competing interests that may doom the journalism. And journalists need to be clear about that dynamic.

Update: It turns out that Brendan Carr is going to intrude in ABC’s license renewals anyway. Carr wrote Bob Iger, citing the settlement, complaining about how ABC is negotiating its renewals.

The incoming chairman of the Federal Communications Commission is sending a stern message to the owners of television stations and networks. And he is using ABC’s recent settlement with President-elect Donald Trump as a news peg of sorts.

Brendan Carr, a Trump-appointed commissioner who will become chairman next month, wrote to Disney CEO Bob Iger over the weekend about the Disney-owned ABC network’s negotiations with its affiliated stations across the United States.

Brian Stelter posted the letter here.

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

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

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

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

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

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

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

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

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

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

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

We don’t live in that world.

Trying to budge Republicans from their reassurances would backfire.

Here’s why.

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

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

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

KRISTEN WELKER:

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

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

You won’t ever concede —

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

But you’re going to be the president.

PRESIDENT-ELECT DONALD TRUMP:

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

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

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

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

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

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

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

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

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

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

None.

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

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

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

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

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

Gone!

Poof!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A damn good question for a confirmation hearing.

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

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

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

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

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

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

RADDATZ: Would Donald Trump go after his political opponents?

VANCE: No —

RADDATZ: He suggested that in the past.

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

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

(CROSSTALK)

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

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

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

Kamala Harris is explicitly —

RADDATZ: Senator Vance, I —

(CROSSTALK)

VANCE: — censorship of folks who disagree with her.

RADDATZ: I want to go back to Donald Trump.

(CROSSTALK)

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

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

He often went after them in public, too.

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

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

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

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

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

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

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

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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

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

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

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

His phone is ringing.

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

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

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

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

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

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

He answers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s why you disclose such things.

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

As you’ve no doubt heard, Congressman Barry Loudermilk released a report that, beneath what seems to be an appendix, refers Liz Cheney for investigation because she made sure that Cassidy Hutchinson had a lawyer who represented the former Mark Meadows aide’s interests when testifying before the Committee.

Loudermilk claims obtaining witness testimony for a proceeding amounts to obstructing it and also claims Cheney — and not those who provided testimony inconsistent with other sworn documents — suborned perjury.

Based on the evidence obtained by this Subcommittee, numerous federal laws were likely broken by Liz Cheney, the former Vice Chair of the January 6 Select Committee, and these violations should be investigated by the Federal Bureau of Investigation. Evidence uncovered by the Subcommittee revealed that former Congresswoman Liz Cheney tampered with at least one witness, Cassidy Hutchinson, by secretly communicating with Hutchinson without Hutchinson’s attorney’s knowledge. This secret communication with a witness is improper and likely violates 18 U.S.C. 1512. Such action is outside the due functioning of the legislative process and therefore not protected by the Speech and Debate clause.

The Federal Bureau of Investigation must also investigate Representative Cheney for violating 18 U.S.C. 1622, which prohibits any person from procuring another person to commit perjury. Based on the evidence obtained by this Subcommittee, Hutchinson committed perjury when she lied under oath to the Select Committee. Additionally, Hutchinson was interviewed by the FBI as part of its investigation into President Trump. This Subcommittee sought a copy of the FBI report 302, documenting this interview and Hutchinson’s statements, but the FBI has refused to produce this vital document. The FBI must immediately review the testimony given by Hutchinson in this interview to determine if she also lied in her FBI interview, and, if so, the role former Representative Cheney played in instigating Hutchinson to radically change her testimony.

Loudermilk’s tribute to Kash Patel’s leadership

Before Loudermilk delivers his welcome wagon for aspiring FBI Director Kash Patel, however, he provides solid evidence that Kash Patel is not fit to be FBI Director.

It turns out that the longest section of his report — 39 pages as compared to 36 for the Cassidy and Liz section — lays out how top DOD officials misrepresented their decisions regarding the National Guard leading up to and on January 6.

Just five pages of that pertain to Christopher Miller’s inaction on what Loudermilk treats as a legitimate request from Trump to have 10,000 National Guard in DC (Loudermilk doesn’t lay out the testimony from top Trump aides nixing that idea, based in part on a fear that Trump wanted an armed guard to accompany him to the Capitol).

But the rest has to do with delays created in deploying the Guard after the riot started. It has long been clear that DOD was blowing smoke about their claimed actions that day. On its face, this part of Loudermilk’s report is fair pushback to DOD’s past unpersuasive claims. He even sneaks some quasi-referrals — whether to aspiring FBI Director Kash Patel or aspiring Secretary of Defense Pete Hegseth, it’s not clear — for Miller and Ryan McCarthy into his report.

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

[snip]

To date, no investigation or disciplinary action has taken place against Secretary of the Army Ryan McCarthy for his failure to relay the Acting Secretary of Defense’s lawful deployment order at 3:04 PM on January 6, 2021.

[snip]

To date, no investigation or disciplinary action has taken place against Secretary of the Army Ryan McCarthy for deceiving congressional leadership with false statements regarding the delay in deployment of the D.C. National Guard to the U.S. Capitol on January 6, 2021.

The referrals are kind of interesting because McCarthy, at least, is on Kash’s dated and disorderly enemies list.

Mind you, if McCarthy was at fault for his January 6 response, it suggests there was something real to be at fault for. Maybe that’s why these referrals are snuck into the longest section of the report?

What’s most interesting, however, is Loudermilk’s picture of the DOD leadership that failed.

Someone — DOD’s then Acting Chief of Staff at the time — is missing.

Indeed, Kash’s name doesn’t show up anywhere in the 128-page report. Kash is a no-show even though, in the immediate wake of the insurrection, he had a great deal to say to Vanity Fair about his personal involvement in the two issues for which Loudermilk faults DOD.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.The implication: Either Trump was shell-shocked, effectively abdicating his role as commander in chief, or he was deliberately stiff-arming some of his top officials because he was, in effect, siding with the insurrectionists and their cause of denying Biden’s victory.

As for Mike Pence, Miller disputed reports that the vice president was calling the shots or was the one who sent in the Guard. The SECDEF stated that he did speak with Pence—then in a secure location on the Hill—and provided a situation report. Referring to the Electoral College certification that had been paused when the mob stormed the building, Miller recalled Pence telling him, “We got to get this thing going again,” to which the defense secretary replied, “Roger. We’re moving.” Patel, for his part, said that those assembled in Miller’s office also spoke with congressional leaders Nancy Pelosi, Chuck Schumer, and Mitch McConnell. “We were called upon to do our job, and we executed because we had the reps and sets built into our process to get the troops where they were requested, to put up a fence, to secure a perimeter, and to help clear the Capitol compound. I mean, that’s just what we do.”

Some of what Kash said to Vanity Fair somewhat resembles Kash’s testimony to the January 6 Committee.

Although look forward to discussing these events in detail, I would like to make three things clear at the outset — excuse me — at the outset:

One, the actions the DOD took before January 6, 2021, to prepare for the planned protest in Washington, D.C., on January 5th and 6th, 2021, were appropriate, supported by requirements, consistent with the DOD’s roles and responsibilities, and compliant with laws, regulations, and other applicable guidance; two, the DOD’s actions to respond to the United States Capitol Police request for assistance on January 6th, 2021, were appropriate, supported by requirements, consistent with the DOD’s roles and responsibilities, and compliant with the laws, regulations, and other applicable guidance; and, three, DOD officials did not delay or obstruct the DOD’s response to the United States Capitol Police request for assistance on January 6th, 2021.

These are not just my words but, in fact, the findings of the DOD’s independent inspector general under President Biden’s administration. The IG’s November 16, 2021, report has marked has been marked as exhibit 3, I think.

But when January 6 Committee staffers asked the now-aspiring FBI Director about the Vanity Fair article itself he got … squirmy. His testimony to J6C was inconsistent with both what he told Vanity Fair and what Loudermilk lays out in his report.

A Oh, so you remember stuff like that. So, going off just the memory, and we can go back to the article when you bring it up, there was a meeting with the President of the United States, Acting Secretary Miller, and some others — I can’t recall off the top of my head where we were discussing, as the article states, something related to Iran.

And, in that same meeting, I believe it was on or around January 4th, 3rd, 4th, or 5th, the -as I stated earlier, in order for the Department of Defense’s National Guard to 11 be activated in any way we needed Presidential authorization. And President Trump at that

[Discussion off the record.]

Q sure. Go ahead.

A Okay. And so this question appears to implicate core executive privilege concems. I’m prepared to answer it, but I want the record to reflect my serious concerns about congressional overreaching of this matter.

So what I remember is that we knew, in order to get the National Guard even mobilized, we needed the President to at least say yes first. So what — my recollection of that meeting is the President preemptively authorized 10 to 20 National Guardsmen and-women around the country sorry? 10- to 20,000.

[snip]

Q Do you remember if the President mentioned anything that he may need these 19 troops to protect the Trump people?

A don’t recall him ever saying that.

Whichever Kash story you believe, however, both stories put Kash in the center of everything. Both stories claim he had the ability to directly affect all of the failures Loudermilk lays out (which might also explain why DOD’s story about January 6 is so unpersuasive).

If Kash was right there at the center of the story of DOD’s failures leading up to and on January 6, as told by Barry Loudermilk, then Loudermilk would have to include him, the aspiring FBI Director, among the referrals for investigation.

Perhaps that’s why Loudermilk instead just disappears the aspiring FBI Director: to avoid referring him to the aspiring FBI Director for accountability for his failures on that day?

How Barry Loudermilk covers up his own coverup

Which brings us to Loudermilk’s own coverup.

Loudermilk has been fluffing Trump’s non-response for some time as in this report, when he shows no interest in the Commander in Chief’s inaction that day.

Rather than dwelling on Trump’s demonstrable inaction, including in accelerating the Guard deployment, Loudermilk claims there was a witness present that day who would have heard if (as Hutchinson testified) Trump had cheered the taunts of “Hang Mike Pence,” rather than (as Jack Smith described) Nick Luna testifying that Trump simply said, “So what” when told Pence was evacuated.

Loudermilk puts great stock in this witness being better situated than Hutchinson to hear what Trump was saying.

This individual was within earshot of President Trump the entire time the President was in the President’s Dining Room. Additionally, in its investigation, the Subcommittee spoke with numerous individuals who worked closely with Meadows in the White House, and they confirmed that Meadows would not react apathetically to calls for violence, nor repeat an incident like the one alleged by Hutchinson so carelessly in a public space.

Only, this appears to be the area where Loudermilk was dealing with incomplete information. As Kyle Cheney first pointed out, Loudermilk released a redacted copy of what appears to be this person’s transcript.

But Jack Smith released an unredacted fragment of that transcript.

The transcript suggests Trump was far more entranced with the mob than Loudermilk wants to admit.

Loudermilk excuses his own gaps in knowledge by accusing Jack Smith of … collusion.

Chairman Loudermilk and the Subcommittee have uncovered evidence of collusion between the Special Counsel Jack Smith—the prosecutor appointed by Attorney General Merick Garland to conduct two separate criminal investigations into President Trump207—and either the White House or the Select Committee. On October 18, 2024, Special Counsel Smith released some of the documents used in his filing against President Trump.208

Among the released documents was an unredacted version of the transcript of a Select Committee interview with a certain White House employee. 209 Given that the Select Committee did not archive, or otherwise destroyed this transcript, and that the White House refused to provide an unredacted version to the Subcommittee, the only remaining explanation is that Special Counsel Smith received the unredacted version from one of the two institutions which did not cooperate fully with the Subcommittee.

207 Press Release, U.S. DEP’T OF JUST., Appointment of a Special Counsel (Nov. 18, 2022).

208 April Ruben, More docs unsealed in Jack Smith’s Jan. 6 case against Trump, AXIOS (Oct. 18, 2024).

209 Kyle Cheney (@kyledcheney), X (Oct. 18, 2024, 11:45 AM).

We may find out soon enough how Jack Smith got an unredacted transcript that Loudermilk did not get. But he’s wrong that they’re the same transcript. They’re paginated differently (what is page 38 on Loudermilk’s copy is page 30 on Smith’s). Which ought to be a hint to Loudermilk’s crack team: the transcript is sourced differently, which may prove that January 6 committee didn’t destroy evidence he accuses them of destroying.

Plus, the point remains: Loudermilk’s own excuses for Trump’s inaction look different in light of more fulsome evidence, which shows Trump was entranced by the riot as soon as he returned to his office.

Loudermilk’s sketchy evidence

As to Loudermilk’s referral of Liz Cheney to an aspiring FBI Director whom Loudermilk would have to refer as well if not for his utter silence about the aspiring FBI Director’s centrality to what Loudermilk describes as insubordination and misconduct?

I hope, for Loudermilk’s sake, that it is intentionally half-hearted, an effort to do what he knows Trump is demanding, to simply give the aspiring FBI Director an excuse to predicate an investigation into Liz Cheney (if not himself).

Because key parts of his argument don’t say what he claims they do.

For example, a footnote in Loudermilk’s report appears to claim that texts between Cassidy Hutchinson and Alyssa Farrah apparently dated May 2 (by context, this would be 2022) are instead from June 6 (2021, the footnote says; my annotations, but Loudermilk appears to have mixed up two sets of texts he has).

Even assuming the footnote meant June 6, 2022, not 2021, the difference matters, because as Loudermilk notes, Hutchinson appeared a third time before the committee represented by Stefan Passantino on May 17, 2022, so her continued satisfaction with Passantino on May 2, 2022 is inconsistent with Loudermilk’s story and consistent with Cheney’s.

Loudermilk makes much of the fact that Passantino was not disciplined after a complaint in which Hutchinson refused to cooperate. Except the source he relies on for that claim, this NYT story, describes (in addition to the fact that Hutchinson refused to cooperate) that Passantino was ordered to do training about written conflict disclosure to his clients.

In a Feb. 2 letter, the office said that while Ms. Hutchinson had consented to having Mr. Passantino’s fees paid by the political action committee aligned with Mr. Trump, putting the arrangement in writing is mandatory under Rule l. 5(b) of the District of Columbia Rules of Professional Conduct. It required him to take legal ethics training classes during a probation period.

But, citing Ms. Hutchinson’s unwillingness to talk to investigators, the office said there was insufficient evidence on the larger matter.

“Ms. Hutchinson made some allegations about your conduct to the committee, but she refused to cooperate in our investigation,” it said. “Accordingly, except for the Rule l. 5(b) allegation, which you admit, we are not proceeding on her other allegations at this time. We are unable to prove those allegations by clear and convincing evidence, as we must.”

Elsewhere, Loudermilk claims that Hutchinson’s own House testimony supports his claim that Hutchinson selected Alston & Bird “at the recommendation of Representative Cheney” (he doesn’t provide a page number). But that section of Hutchinson’s testimony doesn’t support his contention about Cheney’s role in it.

Which brings us to the biggest problem with all this. Loudermilk’s conspiracy theory that Liz Cheney went out and got Hutchinson a lawyer who would support a propaganda line that Committee was seeking gets very close to claiming that Hutchinson’s new legal team, including former top DOJ official Jody Hunt, was himself engaged in unethical conduct.

I would bet a good deal of money that if Hunt were ever asked if he acted ethically when he represented Hutchinson’s later appearances before the committee, he would say he did.

And even if everything Loudermilk claimed were true, even if Cheney were acting as a lawyer and not a Committee member, she’d still be guilty of no more than unethical — not illegal — conduct.

Especially when by focusing on Cheney but ignoring aspiring FBI Director Kash Patel, Loudermilk gives up the game.

This report does more to cover up what Loudermilk himself suggests is potential misconduct from aspiring FBI Director than it exposes real crimes by Liz Cheney.

And he provides this evidence of either incompetence or (Loudermilk claims) misconduct in the black hole where Kash Patel should be just in time for Kash’s confirmation hearings before the Senate.

A wave of media commentary about Trump’s lawsuit against Ann Selzer and the Des Moines Register for engaging in First Amendment protected speech has treated it as somehow more ominous than any of the other nuisance lawsuits Trump has filed over the decades.

I’m skeptical whether this marks a newfound escalation (or even whether ABC’s settlement with Trump had any effect at all on it); remember Trump’s lawsuit against the Pulitzer Prize for rewarding NYT and WaPo journalism that (as I laid out) got to the core of the Russian investigation rather than the stuff Trump distracted people with, which — like the ABC one — won the support of a Florida judge sympathetic to Trump’s bullshit misrepresentations, in this case about the Russian investigation?

This Selzer lawsuit follows a long thread of similar ones that are just as abusive, attempts, like so much else that Trump does, to create his own false reality.

What I do know, though, is that contrary to at least three columns (TPM, Puck, Status), Trump is not on a retribution tour.

retribution
noun
ret·​ri·​bu·​tion ˌre-trə-ˈbyü-shən
Synonyms of retribution
1: recompense, reward
2: the dispensing or receiving of reward or punishment especially in the hereafter
3: something given or exacted in recompense
especially : punishment

Did you know?
With its prefix re-, meaning “back”, retribution means literally “payback”. And indeed we usually use it when talking about personal revenge, whether it’s retribution for an insult in a high-school corridor or retribution for a guerrilla attack on a government building. But retribution isn’t always so personal: God takes “divine retribution” on humans several times in the Old Testament, especially in the great Flood that wipes out almost the entire human race. And retribution for criminal acts, usually in the form of a prison sentence, is taken by the state, not the victims.

Synonyms
payback
reprisal
requital
retaliation
revenge
vengeance

If you believe Trump is on a retribution tour, you are accepting his claim that truthful reporting of (flawed) survey results, or truthful reporting of what sources say about Trump associates’ attempts to cover up their ties to Russia, or truthful labeling of lies as lies, amount to some kind of harm.

If you use the term “retribution” to describe Trump’s attacks on the press, you are accepting his frame that free speech that accurately describes his faults is somehow wrong, an injury to be avenged.

Worse still, if you adopt his frame — retribution — you are normalizing the false claims of grievance that animated Trump’s entire campaign, from the kickoff in Waco to the far right rally in Madison Square Garden — a campaign of grievance explicitly defending insurrection against democracy, as Jonathan Karl laid out over a year ago.

He declared, “2024 is the final battle.”

This wasn’t a campaign speech in any traditional sense. Trump echoed the themes of paranoia and foreboding that grew out of the Waco massacre. “As far as the eye can see, the abuses of power that we’re currently witnessing at all levels of government will go down as among the most shameful, corrupt, and depraved chapters in all of American history,” he said.

“They’re not coming after me,” he told the crowd. “They’re coming after you.”

The message seemed to resonate, but its brazenness was staggering. The folks cheering Trump had not taken boxes stuffed with classified documents out of the White House—and it’s safe to assume that none of them spent tens of thousands of dollars to cover up an affair with an adult‐film star.

Whatever you think about the investigations, Trump invited the scrutiny. Special Counsel Jack Smith was probing Trump’s role in the January 6 attack and his failure to turn over that classified material. Fulton County District Attorney Fani Willis was investigating his efforts to overturn the 2020 presidential-election results in Georgia. And Manhattan District Attorney Alvin Bragg was nearing an indictment on charges related to hush‐money payments Trump made weeks before the 2016 election to the porn star Stormy Daniels.

“The DOJ and FBI are destroying the lives of so many Great American Patriots, right before our very eyes,” Trump posted on Truth Social the day after four members of the Proud Boys militia were convicted of seditious conspiracy for their role in the storming of the Capitol. “GET SMART AMERICA, THEY ARE COMING AFTER YOU!!!”

[snip]

“The sinister forces trying to kill America have done everything they can to stop me, to silence you, and to turn this nation into a socialist dumping ground for criminals, junkies, Marxists, thugs, radicals, and dangerous refugees that no other country wants,” he said. The speech was ominous, but one rhetorical flourish stood out. “In 2016, I declared I am your voice. Today, I add: I am your warrior; I am your justice,” Trump said. “And for those who have been wronged and betrayed, I am your retribution.” He repeated the last phrase—“I am your retribution”—and promptly the crowd started chanting: “U.S.A.! U.S.A.! U.S.A.!”

When I spoke with Bannon a few days later, he wouldn’t stop touting Trump’s performance, referring to it as his “Come Retribution” speech. What I didn’t realize was that “Come Retribution,” according to some Civil War historians, served as the code words for the Confederate Secret Service’s plot to take hostage—and eventually assassinate—President Abraham Lincoln.

“The use of the key phrase ‘Come Retribution’ suggests that the Confederate government had made a bitter decision to repay some of the misery that had been inflicted on the South,” William A. Tidwell, James O. Hall, and David Winfred Gaddy wrote in the 1988 book Come Retribution: The Confederate Secret Service and the Assassination of Lincoln. “Bitterness may well have been directed toward persons held to be particularly responsible for that misery, and Abraham Lincoln certainly headed the list.”

Trump’s authoritarian project depends on convincing masses of people that accurate descriptions about him, or equal application of the law to him, or good faith if flawed efforts to measure the number of Iowans who prefer someone else to be president harm not just him, but them, his followers. Trump’s authoritarian project depends on convincing people that because he can’t withstand truthful descriptions, his followers must oppose the truth as a grievous harm, a crime.

Trump’s authoritarian project depends on packaging up his assault on truth as justice.

That’s what you buy into when you use the word “retribution” to describe what he’s doing.

No person who cherishes journalism, truth, democracy should be a party to that kind of obfuscation.

[NB: check the byline, thanks. /~Rayne]

I’ve been fuming about this since — oh, check the date and time on this graphic:

For the NFL football or Michigan uninformed, the Detroit Lions played the Buffalo Bills on Sunday evening at home. The hometown crowd was amped up because the Lions had a 12-1 season and already garnered a playoff slot.

But they also knew things would be tense because of the number of injured players on the team.

The Bills opened up a 14-point lead in the first quarter and the Lions were never able to catch them; the final score was 48-42.

That’s the frame from which the above report in Gannett’s local affiliate the Detroit Free Press (Freep) reported on CBS Sports’ coverage of the game.

Gannett is the largest newspaper publisher in the US; it’s the owner and publisher of USA Today and 32 other news papers. Freep’s criticism of CBS Sports coverage follows decades of CBS missteps in the Detroit market.

During what little I watched of the game, CBS’s talking heads were shit. Very little commentary on a couple lousy calls, or not-calls, in at least one case of pass interference early in the game.

I won’t bother to post his crap here but commentator Tony Romo was a dick, not exactly endearing CBS to the Detroit Metro audience. You’d think he’d know by now there’s quarterback smack talk and then there’s former player professional broadcaster sports talk, the latter for which he is paid.

All that aside, this article does more to criticize another media outlet’s coverage than we have seen among national outlets who have systematically fucked up coverage for decades.

How and why can a large newspaper owned by a national organization freely criticize a national broadcast and streaming media organization about its coverage, but the same kinds of organizations have failed our democracy by bootlicking for fascists?

By bootlicking I offer as an example ABC News which folded like a broken lawn chair settling $15 million on Trump who’d claimed he was defamed by ABC. ABC had used the same language leveled at Trump in court but somehow a national news broadcaster is no longer permitted to exercise free speech reporting facts in Trumplandia.

After the gross moral and ethical failure of the Washington Post to make an endorsement in the presidential race, after Los Angeles Times’ similar failing, one can only wonder what’s left of the country’s once-free press.

Don’t get me started on the bullshit coverage which parroted right-wing talking points over the last three presidential elections, from “But her emails” to “Joe’s old” to “Hunter Biden Hunter Biden Hunter Biden.”

NYU’s Jay Rosen has encouraged news media to depart from its toxic horse race coverage of elections and move toward reporting the stakes of the race. Stakes coverage should be a minimum across all coverage of politics and governance.

If media can’t do that — and they’ve demonstrated they can’t — if they insist on treating our democratic governance like sports, the least they can do is criticize their own industry’s performance like they do when it comes to football.

This is an open thread.

This article by Professor Molly Worthan at the University of North Carolina diseases the form of religion taught by Bishop Robert Barron.  Worthan says that Barron operates Word on Fire, a ministry that uses social media to preach a tough version of Catholicism that appeals to men, especially young men.

This [tough view] is not the message that [Barron] got as a young Catholic. “To be frank about it, when I was in the seminary, it was more of a feminized approach,” he recalled. “We did a lot of sitting in a circle and talking about our feelings.”

Whatever is in his instagram and You-Tube videos, which I, of course, won’t watch, it seems to appeal to younger men, as his audience is over 60% male. Worthan says that among college grads under age 40, 69% of mall claim a religious affiliation compared with 62% of women.

Male resentment

Worthan offers this possible explanation.

Some pundits argue that as gender norms shifted and women started outnumbering men in universities and the white-collar workforce, men have grown resentful and nostalgic for patriarchy—so they seek it in traditional religion. J. D. Vance is the country’s most famous Catholic convert, and the story of his rightward shift might seem like a template for all Gen Z and Millennial men interested in Christianity.

This explanation says that men respond to the success of women by asserting their superiority as the men of the patriarchy. Historically men were dominant and women were subordinate. For many this cashed out as men have all the power and women are submissive. Historically, this system was enforced by the state and by religious authorities. Today it’s a part of all religions, and is a central aspect of all fundamentalist religions.

Seeking a solution to the apparent superiority of so many women in the Patriarchy  is an example of what C.S. Peirce calls the method of authority, one of his four responses to doubt. From his 1877 essay The Fixation Of Belief,

Let the will of the state act, then, instead of that of the individual. Let an institution be created which shall have for its object to keep correct doctrines before the attention of the people, to reiterate them perpetually, and to teach them to the young; having at the same time power to prevent contrary doctrines from being taught, advocated, or expressed. Let all possible causes of a change of mind be removed from men’s apprehensions. Let them be kept ignorant, lest they should learn of some reason to think otherwise than they do. .,,

Males Adrift

Worthan offers her own explanation:

Many young men feel unmoored—lonely in a time of weakening social institutions, unsatisfied and overworked by an accelerating professional rat race, alienated by political tribalism. “Men my age, we don’t have the social organizations that our fathers or grandfathers did,” Torrin Daddario, a Barron fan who converted to Catholicism from a Protestant background, told me. “We’re adrift.” Over the past decade, both the left and the right have tried to fill the void with morality tales that treat unfettered individual freedom as sacred and split the world into victims and oppressors. Those stories are getting stale.

Worthan explains that these young men get much of their information from YouTube and other social media. She says they might check out Jordan Peterson, for example, leading to Christianity, and the algorithm leads them to Barron.

This is an example of Peirce’s third possible response to doubt, which we might today call the method of common sense.

Let the action of natural preferences be unimpeded, then, and under their influence let men, conversing together and regarding matters in different lights, gradually develop beliefs in harmony with natural causes. … [Systems of metaphysics] have been chiefly adopted because their fundamental propositions seemed “agreeable to reason.” This is an apt expression; it does not mean that which agrees with experience, but that which we find ourselves inclined to believe.

Listening to random people who don’t have better information that you do is a recipe for failure. Listening to people hawking the old solutions, including patriarchy in its many forms, has the same result. You don’t get answers that are useful in our society. You get contemporary versions of answers to questions aur ancestors asked centuries or millennia ago. We living people have different questions based on radically different societies from those of our ancestors.

Beyond Atheism vs. Religion

All this gets boiled down into a discussion of atheism vs. religion. In the US, this debate is between people like Sam Harris and Richard Dawkins, the New Atheists on one side; and the Bishop Barrons and aggressive groups like Opus Dei and Christian Domionists. It almost always is understood as atheism vs. Christianity, ignoring the teachings of other religions. It deals with untestable beliefs like the existence of a Supreme Being or the proper form of worship, and never the moral teachings. This kind of simplistic dualism pervades all  public discourse on almost any issue. I am very skeptical of all dualistic framings, especially dualisms originating in the distant past.

The feelings Worthan describes are common among large numbers of people at especially after the First World war. The result was the origination of  secular theories of humanity that seem to me to transcend arguments about the existence of a Supreme Being and forms of worship.

One example is Existentialism. Those adrift young men listening to Barron might recognize themselves in the ennui expressed in Sartre’s play No Exit. The most famous line in the play is “hell is other people”. The three “other people”, condemned to hell for their sins, will torture each other through eternity. The play concludes with the words: “Well, well, let’s get on with it. …” But is that the answer to the problem they face? Wallowing?

Sartre doesn’t think so. Neither do the other existentialists. Look at The Plague by Albert Camus. The hero is the doctor. In the face of a deadly plague he does his best to tend to the sick and dying, advise the living how to protect themselves, and find a cure. The other characters display other responses to the plague, some modestly useful, others worthless. Camus tells us we have to act, to help, to fight the inevitable, to resist the meaninglessness of the universe by finding meaning in other people.

The odd thing, of course, is that traditionally the fundamental character of the masculine was action, while the feminine was characterized by passivity. Men find their place in society by accomplishment. Women find their place in the home and in child-rearing.

How ridiculous is it that men respond to women’s action in the world by becoming passive wimps? Or by asserting an invented superiority not arising from personal accomplishment?

======

Image; Ruth Bader Ginsberg in her Columbia academic regalia, 1959

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

In his plea deal, Smirnov admitted,

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

Yesterday, Judge Otis Wright accepted Smirnov’s plea.

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

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

3. Defendant agrees to:

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

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

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

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

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

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

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

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

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

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

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

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

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

We’ll know soon enough.

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

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

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

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

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

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

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