I was busy serving Thanksgiving Dinner and watching Irish election returns yesterday when Trump announced Kash Patel as his pick to be FBI Director. I’ve long been assuming that, wherever Patel ended up, he would have access to any files at FBI (look to John Solomon and Catherine Herridge to have a lot of inside tracks on propaganda). So the question was just a matter of how Trump gave Patel access to politicize FBI. By picking Patel as the Director rather than Deputy Director (only the former of which requires confirmation), Trump did so in the maximally confrontational way.

Here are four thoughts on how that confrontation plays out.

First, by picking Kash and including false claims about the Deep State in his announcement, Trump forces journalists to address his false claims. Here’s how Devlin Barrett and Maggie Haberman chose to replicate Trump’s false claims with no correction, for example.

Mr. Patel has been closely aligned with Mr. Trump’s belief that much of the nation’s law enforcement and national security establishment needs to be purged of bias and held accountable for what they see as unjustified investigations and prosecutions of Mr. Trump and his allies.

Mr. Patel “played a pivotal role in uncovering the Russia, Russia, Russia Hoax, standing as an advocate for truth, accountability and the Constitution,” Mr. Trump said in announcing his choice in a social media post.

He called Mr. Patel “a brilliant lawyer, investigator and ‘America First’ fighter who has spent his career exposing corruption, defending Justice, and protecting the American people.”

Mr. Patel, a favorite of Mr. Trump’s political base, has worked as a federal prosecutor and a public defender, but has little of the law enforcement and management experience typical of F.B.I. directors.

It is provably false that the investigations into Trump were partisan. There were three investigations of Hillary during the 2016 election (the server investigation, the Clinton Foundation investigation predicated off of right wing oppo research, and a third that was probably the Emirates’ effort to cozy up to her campaign). Joe Biden was investigated for retaining classified documents, just like Trump was. Thousands of other people were investigated for January 6.

Your choice to describe Trump’s false claim (and describing it as a belief, which you cannot know) without correction is simply participation in propaganda. (Politico at least called out Patel for “perpetuating conspiracy theories about the 2020 election.”)

And what Trump calls a hoax resulted in judgments that Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker all lied to cover up what really happened with Russia in the 2016 election. Journalists could choose to state that every time Trump calls it a hoax. NYT has almost never chosen to do that, which is how Trump’s propaganda works so well.

But longtime FBI journalists like Barrett will offer some other reason why Patel is a terrible pick — here, insinuating he doesn’t have the experience to do the job. I don’t know: After babysitting Ric Grenell at ODNI, Kash babysat Christopher Miller at DOD. That’s high level — if brief — experience.

Others — like CNN — look to the 10-year term set by statute to suggest Patel’s appointment is problematic.

FBI directors serve 10-year terms in part to shield the bureau’s leader from political pressure. FBI directors serve decadelong terms as the result of a post-Watergate law passed in response to J. Edgar Hoover’s controversial 48-year leadership of the agency.

The breaking of this norm is not new for Trump, who fired Comey shortly after taking office in 2017. Comey, who helmed the FBI during the investigation into Russian interference in the 2016 presidential election as well as the Hillary Clinton email controversy, was fired by Trump in May 2017 after serving in the position for over three years.

It’s true there’s a 10-year term. But I looked: Only William Webster served 10 and only 10 years. Robert Mueller was kept overtime, in part because he had authorized surveillance programs that were under fire. Louis Freeh resigned in the midst of scandals, leaving the seat open in advance of 9/11. Comey, of course, was fired because he wouldn’t kill the investigation into Mike Flynn before Mike Flynn confessed to lying to cover up his calls with Russia’s ambassador.

I raise that point because the question of whether Kash’s politicization of the Bureau would be so detrimental that it would lead to threats against the US going undisturbed should be the key issue in this confirmation fight. Undoubtedly, corruption (including in the form of Jared’s father being appointed to be Ambassador to France, which Trump also announced yesterday) will start to erode US remaining integrity, up and down government and the economy. It’s certainly possible that counterintelligence and hacking threats will go ignored; already in the first Trump Administration, people with expertise on Russia were driven out, and that would presumably continue. Mis- and disinformation would be protected.

Are those who oppose a Kash appointment able to explain those risks, which is what has really driven Director’s terms?

The Kash appointment heightens my interest in what DOJ Inspector General Michael Horowitz will do going forward. Trump has threatened to fire the Inspectors General and Horowitz is the most prominent — but Chuck Grassley has pushed back. That said, Horowitz has survived where he is by catering to Republican demands. So I’m wondering not just whether Horowitz could survive in the job, which would serve as a strong check on Patel. But also whether we’ll get two reports that will expose Trump’s past politicization in ways important to a potential Patel pick.

The report on January 6, for example, will lay out how Jeffrey Clark tried to take over DOJ to make it into an object of Trump’s reelection. It will also describe how FBI’s treatment of right wing extremists as informants undermined DOJ’s ability to anticipate January 6. Horowitz has committed to try to release this report by inauguration, but if he does, it could precipitate his firing.

There’s also a report on the investigation of journalists and Members of Congress to find sources for anti-Trump coverage in the first Trump term. This is precisely the kind of politicized investigation that Kash has promised (he has specifically promised to go after people who accurately report on things like the Hunter Biden laptop). The report is badly overdue, but it also threatens to trigger a backlash.

Finally, consider two aspects of the timing of this pick. First, by announcing it now, Trump has made Chris Wray a lame duck. Anyone investigating something that might implicate Trump — such as those investigating Polymarket CEO Shane Coplan — will know that they will have no top cover in a matter of weeks. That was already true, mind you: Pam Bondi would see to that. Plus, it was already clear that Trump was going to replace Wray. Still, this could have a chilling effect on ongoing investigations — or it could create very interesting martyrs at the beginning of Trump’s term.

Then there’s another aspect to the timing. Trump announced this pick — as he did the decision implanting all his defense attorneys at DOJ — while Jack Smith’s prosecutors are working on their report. And Kash should show up in that report, at least to lay out his false public claims that Trump had declassified all the documents he took with him (and possibly even his demand that he got immunity before giving that testimony). I’m not sure how central that will be to a report. But Trump had a choice about how confrontational to be with how he installed Kash in a place to dismantle the so-called Deep State, and his choice to be maximally confrontational may have a tie to this report.

People are currently thinking of all the other ways Kash has helped serve Trump’s false claims in the past — the false claim that the Russian investigation was predicated on the Steele dossier, efforts to override Ukraine experts during that impeachment, attempts to misrepresent the Russian investigation. But the Smith report may well explain that Trump’s FBI Director nominee played a more central role in Trump’s effort to spin Trump’s efforts to take hundreds of classified documents home. So when Kash gets a confirmation hearing, it will put the veracity of the Smith report centrally at issue. If Senators find the report convincing, they should have renewed cause to reject Patel’s nomination, but Trump has almost without exception forced GOP Senators to believe his false claims to avoid scary confrontations with him, so I wouldn’t bet against Trump and Kash.

Trump has spent eight years sowing propaganda about his own corruption and crimes. Not just Patel’s nomination to a position in which he could thoroughly politicize rule of law, but also the means by which Trump made that nomination, is part of that same project.

We have a brief two months to try to reverse eight years of propaganda, propaganda often assisted by journalists playing data mule for Trump’s Truth Social propaganda or exhibiting laziness about correcting his false claims. If Trump succeeds, it will grow far more difficult to sort out truth from crime anymore.

That was always going to be true. But the means by which Trump is conducting his effort is all part of the propaganda campaign.

Update: Roger Parloff linked the 302 interview with someone who is likely Eric Herschmann describing someone who is almost certainly Kash Patel lying about having a standing declassification order.

Also, LOLGOP re-released our Ball of Thread episode that focuses closely on Patel’s propaganda about Crossfire Hurricane.

Nicole Sandler and I are taking another week off. But LOLGOP finished the next installment of our Ball of Thread series — this one tracing Rudy Giuliani’s effort to frame Joe Biden.

Save for my spouse’s football games on TV, this Thanksgiving holiday is very quiet here. Our family celebrated together this past weekend because my youngest works in manufacturing at a facility which can’t shut down for holidays. They’re at work now as are millions of others who continue tend to our needs, forfeiting time with friends and family for us.

Someone sent me this graphic for which I have no originating attribution:

Thank you to the workforce whose labor has ensured our holiday feasting is amply endowed with this growing season’s finest.

Thank you especially to the undocumented workers who are worried about the incoming administration and what may happen to them and their families. Without these hard-working folks we would have a fraction of the produce and meats on our tables today.

Thank you to our neighbors Canada and Mexico, who likewise are concerned about what is to come, who have ensured our country’s economic growth through trade with the U.S. Some of the produce we’ve eaten this week wasn’t picked in the U.S. but imported from both Canada and Mexico.

It’s not easy to give thanks now. It’s tough to look past the pain of loss and the fear of what’s to come. But there may never be a better time to give thanks than right now, because we don’t know what lies ahead. Let’s do it while we can.

“Let us be grateful to the people who make us happy; they are the charming gardeners who make our souls blossom.” ― Marcel Proust

Thank you to you, our readers and donors who are the charming gardeners of this site. You help motivate us to slog on when it gets tough.

Best to you and yours this holiday. May we all find joy when we need it to keep us going in the year ahead.

Amid the Star Wars bar menagerie of Trump Administration picks, that of Jay Clayton to be US Attorney for SDNY has gone little noticed.

But it was among the earliest picks Trump announced, on November 14, like that of Mike Huckabee to be Ambassador to Israel on November 12, weirdly early, bespeaking an unusual set of priorities.

Here’s how NYT — reporters who know the Sovereign District well — covered the Clayton pick.

President-elect Donald J. Trump on Thursday said he would pick Jay Clayton, the top Wall Street enforcer in the first Trump administration, as the head federal prosecutor for the Southern District of New York, a critical post for an incoming president who has vowed revenge on those who pursued him in the courts.

Mr. Trump made the announcement on his social media platform Truth Social, where he called Mr. Clayton “a highly respected business leader, counsel and public servant.” Mr. Clayton still must be confirmed by the Senate.

The office of U.S. attorney for the Southern District of New York is considered one of the most prestigious federal prosecutor’s offices in the nation. It holds sway over some of America’s most powerful businesses and financial institutions, and it has aggressively targeted politicians accused of corruption.

[snip]

Mr. Clayton is not a former prosecutor — often seen as a prerequisite to being named as a Southern District U.S. attorney — but he has long wanted the Manhattan post, said Steven Peikin, a lawyer at Sullivan & Cromwell who served as his co-director of enforcement at the S.E.C.

In fact, toward the end of his tenure at the S.E.C., Mr. Clayton nearly got the job when he emerged as a potential candidate to replace Geoffrey S. Berman, a Trump-appointee who then held the post.

In a surprise move, the attorney general at the time, William P. Barr, announced in June 2020 that Mr. Berman had resigned as U.S. attorney for the Southern District and Mr. Clayton would replace him. But Mr. Berman denied he had stepped down. He was then fired by President Trump, an action he did not contest after he was assured his deputy, Audrey Strauss, would lead the office.

The affair was worrisome to some Justice Department officials because at the time Mr. Berman’s office was handling cases involving people close to Mr. Trump. The episode raised concerns about possible political interference in criminal investigations.

Mr. Berman, in a statement to The New York Times on Thursday evening, said of Mr. Clayton, “Jay is an exceptional lawyer and will be an excellent United States attorney.”

Clayton is a grownup, though not a prosecutor. But Trump attempted to install him once before as a way to oust the incumbent US Attorney and — it is widely understood — in an attempt to thwart ongoing investigations into Trump’s people.

Even in spite of their expertise, I don’t see a NYT story on what happened next.

First, on November 18, Merrick Garland visited SDNY to encourage AUSAs there to continue on: “You will continue in the Department’s mission, what has always been its mission: to uphold the rule of law, to keep our country safe, and to protect civil rights.”

Then on Monday, the current US Attorney for SDNY, Damian Williams, announced he would resign on December 13, leaving his Deputy, Edward Kim, in charge.

Damian Williams, the United States Attorney for the Southern District of New York, who has served as the chief federal law enforcement officer in the district, announced today his intention to resign his position as United States Attorney, effective 11:59 p.m. on December 13, 2024. Edward Y. Kim, who currently serves as Deputy United States Attorney, will become the Acting United States Attorney upon his departure.

U.S. Attorney Damian Williams said: “Today is a bittersweet day for me, as I announce my resignation as United States Attorney for the Southern District of New York. It is bitter in the sense that I am leaving my dream job, leading an institution I love that is filled with the finest public servants in the world. It is sweet in that I am confident I am leaving at a time when the Office is functioning at an incredibly high level – upholding and exceeding its already high standard of excellence, integrity, and independence. That success is due to the career attorneys, staff members, and law enforcement agents of this Office. Working with them during my tenure has been a privilege of a lifetime. They are worthy custodians of this Office’s tradition of doing the right thing, the right way, for the right reasons. They are patriots. They are my family. And I will miss them dearly.

In spite of NYT’s apparent reticence (or, perhaps, ongoing reporting), it was big news: WaPo’s coverage noted Williams’ close ties to Garland and Bill Barr’s past effort, described by NYT, to install Clayton as a means to oust Williams.

NYPost’s coverage instead focused on the boon this may present for Eric Adams’ case, even while noting that prosecutors plan to supersede the indictment and have a December 20 status hearing scheduled. By the end of NYPost’s story, they had moderated their headline claim that Williams’ move, will “make way for Trump’s replacement.” As they acknowledged, Williams’ resignation doesn’t make way for Clayton, at least not before he is confirmed; it makes way for Kim as the interim Acting US Attorney.

Clayton’s appointment still requires confirmation by the US Senate.

Until then, Williams’ deputy, Edward Y. Kim, is set to take over as acting US Attorney when he steps down.

We’ll see how all this plays out, as we saw how it played out in June 2020, when Barr tried to remove Geoffrey Berman before SDNY took action in August 2020 against Steve Bannon and his co-conspirators and tried to advance the investigation into Rudy Giuliani, only to have Berman lawyer up and invoke succession rules to ensure that his Deputy Audrey Strauss would continue. Unless SDNY judges take action to protect Kim, I think Trump can just replace him with another Acting US Attorney on January 20, though I’m not an SDNY lawyer and they have ways of working the law.

In any case, by announcing the Clayton pick so early, Trump ensures that incoming SJC Republicans can prioritize his confirmation — and since he’s a much higher caliber pick than Trump’s other picks — it could go quickly.

But it’s likely not Adams’ prosecution (much less Diddy’s, which NYPost also invoked) that Trump’s early pick of Clayton was an attempt to redirect. For a variety of reasons, I expect Trump will include Adams in the pardon-palooza that will kick off his Administration.

Indeed, I can’t help but notice that Trump announced this pick one day after the FBI seized the devices of Polymarket CEO Shayne Coplan on November 13.

The FBI seized a cellphone and other electronic devices of betting site Polymarket’s CEO, Shayne Coplan, in a raid on his New York City apartment early Wednesday, according to a source familiar with the matter.

The company’s markets wagered correctly and controversially in Donald Trump’s favor in bets on who would win the presidential election, even though opinion polls showed a tight race.

Coplan, 26, was home when numerous agents entered his apartment Wednesday and he turned over his devices to authorities, the source said, adding that he has not been arrested or charged. The source said it is not clear whether Coplan or Polymarket are targets of an investigation.

“New phone, who dis?” Coplan posted on X after the raid.

Polymarket, which Coplan founded in 2020, has recently been the subject of intense debate and scrutiny over its creation of election betting markets. It brought in more than $3.6 billion from bets placed on the presidential election, including $1.5 billion on Trump and $1 billion on Vice President Kamala Harris, according to an NBC News analysis.

Speculation has swirled around the identities of major bettors who wagered on Trump and whether or not the odds and the existence of the markets could have had an effect on voters.

Though U.S. election betting is newly legal in some circumstances, Polymarket is not supposed to allow U.S. users after the Commodity Futures Trading Commission halted its operations in 2022, but its user base largely operates through cryptocurrency, which allows for easy anonymity.

There are other investigations that Trump might be trying to interrupt with this quick appointment. But the Polymarket investigation — in which FBI got a probable cause warrant targeting someone who helped Trump’s campaign within days of the election — is likely one of them.

Once before, Trump tried to install Jay Clayton at SDNY to block investigations into his people. This time around, Trump will have to find a different path than just firing the incumbent US Attorney. Because he already quit.

Yesterday, Hugo Lowell reported that Trump wants to bypass FBI background checks until he has gutted the FBI.

Trump officials to receive immediate clearances and easier FBI vetting
Exclusive: president-elect’s team planning for background checks to occur only after administration takes over bureau

Donald Trump’s transition team is planning for all political appointees to receive sweeping security clearances on the first day and only face FBI background checks after the incoming administration takes over the bureau and its own officials are installed in key positions, according to people familiar with the matter.

The move appears to mean that Trump’s team will continue to skirt FBI vetting and may not receive classified briefings until Trump is sworn in on 20 January and unilaterally grant sweeping security clearances across the administration.

Trump’s team has regarded the FBI background check process with contempt for months, a product of their deep distrust of the bureau ever since officials turned over transition records to the Russia investigation during the first Trump presidency, the people said.

But delaying FBI vetting could also bring ancillary PR benefits for the Trump team if some political appointees run into problems during a background check, which could upend their Senate confirmation process, or if they struggle to obtain security clearances once in the White House.

In the days before this story, as I laid out here, up to five Senators have spoken with various degrees of fortitude in support of requiring FBI background checks before confirming any Trump appointee. Lisa Murkowski did so in an Alaskan interview. Then the Hill quoted four Senators at least expressing support for background checks, with Susan Collins, Kevin Cramer, and Mike Rounds joining Murkowski in questioning the value of a private firm’s review as opposed to the FBI’s.

“The FBI should do the background checks, in my judgement,” said Sen. Susan Collins (Maine), who serves as the ranking Republican on the Senate Appropriations Subcommittee on Defense and as a senior member of the Senate Intelligence Committee.

Sen. Kevin Cramer (R-N.D.), a member of the Senate Armed Services Committee, argued that the FBI has access to information gathered by law enforcement on the federal, state and local levels that private firms don’t.

“If you wanted to supplement it with a private firm, I’d say OK. But the FBI does have access to information that probably a private firm wouldn’t have, even a really good savvy one,” he said.

Cramer said a private firm could help the FBI in its background investigations, but he “sure wouldn’t leave it” entirely outside the FBI’s hands.

[snip — click through to see Murkowski’s comments]

Sen. Mike Rounds (R-S.D.) said not having the FBI conduct background checks for high-level nominees by the time Trump formally appoints them next year “would come under scrutiny at the congressional level.”

He said lawmakers “would want to know the validity of those individuals doing the background checks.”

“Just because the White House doesn’t request a background check out of the FBI wouldn’t then mean perhaps some committees might not ask for it,” he said.

A different Hill story, which focuses on Scott Caucus member Bill Hagerty scoffing at the value of background checks, also quotes Joni Ernst saying FBI checks would be “helpful,” at least for Pete Hegseth.

Other Senate Republicans, however, say the FBI should retain its leading role in conducting background checks, and Sen. Joni Ernst (R-Iowa), a member of the Armed Services Committee, says an FBI background check of Hegseth would be “helpful.”

I get that Susan Collins has a history of backing down from principles she claims to care about. I get that some of these statements are squishy. It is also true that right wingers are already targeting Murkowski’s more categorical statement as some kind of Deep State plot.

But even as the pressure on Murkowski ratchets up, those seeking to prevent the wholesale takeover of the government by conspiracy theorists need to understand that it will take more than journalism about the risks of entrusting the intelligence community to a woman who finds Bashar al-Assad persuasive and the largest military in the world to a guy slathered with white supremacist tattoos (though experts have pointed out that for some of these positions, a proper vetting would require further intelligence involving).

It requires convincing four Republicans in the Senate to insist on doing the bare minimum by requiring background checks. In a 53-47 Senate, any four Republican block of voters, joining the Democrats, would be enough to thwart Trump’s crazier plans.

Want proof that can work? After four Republicans (and then six) came out against Matt Gaetz’ nomination, Trump conceded he didn’t have and never would get the votes.

Realizing this — understanding that the Magic Number to guard against Trump’s crazier plans is four — makes things both easier, and harder. Easier, because we know that only a quarter of Senate Republicans (including Hagerty) will reflexively support everything Trump does, at least as measured by support for Rick Scott over one of the more institutionalist Senate Majority Leader candidates. And harder, because most of these people have a history of caving and Trump will bring a great deal of pressure on them to do so again.

But that’s no reason to cede the fight ahead of time. On the contrary, it’s all the more reason to spend the time, now, to call Republican Senators who might demand background checks — to call your Republican Senator — and insist that exercise at least that minimum level of due diligence for the most powerful positions in government.

Get used to that magic number, four. Because trying to persuade four-Senator blocks of Republicans to oppose something is one of the most obvious ways to protect the country.

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

Who knows whether that means anything.

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

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

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

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

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

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

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

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

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

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

By all accounts, CNN was the first to report that lawyers for Trump conducted a review of Boris Epshteyn’s “consulting” for access to Trump. Not long after, John Solomon wrote a more thorough version of the story, including the detail that an announcement for Boris’ appointment as an Assistant to Trump in the White House has been held up as the review concluded.

A week ago, a draft of a press release was handed to transition aides announcing Epshteyn as an assistant to the president, but it was never released, several senior aides confirmed to Just the News. He has told some friends in recent days that he might prefer to stay on the outside rather than go into the administration.

Before I get into what those reports say, consider Hugo Lowell’s take, which focuses not so much on the allegations, but on an assertion that the report itself arises from in-fighting among Trump’s team.

Epshteyn remained part of Trump’s inner circle as of Monday evening, with Trump riding high on the news that special counsel prosecutors had moved to dismiss the two federal criminal cases against him – a victory he credited to Ephsteyn.

The first person that Trump called when prosecutors withdrew the cases against him was Epshteyn, according to two people with Trump at the time, which occurred just as CNN first reported the existence of the review into Epshteyn’s consultancy scheme.

For the remainder of the day, Epshteyn was on the offensive as his allies dismissed the review as an attempt by Warrington to decapitate Epshteyn after he successfully pushed for Bill McGinley to be the White House counsel, rather than Warrington, who had also been in contention for the role.

Epshteyn’s allies later portrayed the review as a political hit job capitalizing on Epshteyn’s role in pushing for the former congressman Matt Gaetz to get the nomination for attorney general before it sank under the weight of sexual misconduct allegations.

It’s unclear the event that predicated the investigation (note that Steven Cheung told multiple outlets that the review focused on others in addition to Boris). But incoming Treasury nominee Scott Bessent’s discomfort with Boris’ entreaties, going back to February and including a pitch for a basketball related business with some ties to Steve Bannon, seem to have played a key role.

Which is one question I have about this process. The various stories quote disgruntled targets, including a defense contractor whose access Boris promised to throttle going forward. CBS includes comment from Don Bolduc, who found the entire process of getting Trump’s neutrality in a New Hampshire Senate primary so distasteful, he left politics thereafter (though a Bolduc staffer was more positive about the experience).

“There’s nothing honorable about politics,” said Bolduc, a retired Army brigadier general. After his failed Senate race, Bolduc enrolled in a police academy and became a rookie small-town cop at age 60.

But it doesn’t say whether Matt Gaetz paid Boris for his support for a reckless bid to be Attorney General just as the ethics report into him was completed.

Boris’ “consulting” has been public for years, in campaign finance disclosures. What seems to have happened here is that someone who, after some brawling, came out of ahead on a contentious cabinet spot, Treasury, complained about the manner in which Boris monetizes his access to Trump.

But the timing of the effort matters: given the dismissal of the federal cases against Trump, he’s unlikely to prioritize the views of those who didn’t help him beat the rap, at least for now. Heck, that may explain the conflicting stories about whether the inquiry is done or not: maybe Trump ended it once the dismissals came out.

And so six people who would like to see him gone have made sure this gets publicized.

It’s sort of cute: People like Solomon claim that Trump’s promise to Drain the Swamp was anything but projection. So whatever else this incident does (Eric Trump has suggested it could lead to Boris’ ouster, but perhaps that’s just from the White House itself), it may disabuse Trumpsters of their fantasy that they’re not part of a very corrupt system.

One more point: I assume there will be a Jack Smith report. And I assume it’ll include Boris’ actions in there, actions that (like this shakedown) seem to tie to Steve Bannon. If people are interested enough in ousting Boris that may provide an interesting dynamic.

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

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

But OLC does not require dismissing the indictment with prejudice.

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

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

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

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

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

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

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

Politico is one of the outlets that is focusing most productively on areas of tension between Article I Republicans and Trump. Their very good House journalists have this piece on objections to impoundment (which would strip the House of its most basic function, the power to appropriate), use of military for mass deportation (from Rand Paul), and tariffs (from John Thune). Josh Gerstein noted Chuck Grassley’s opposition to Trump’s plan to replace all the current Inspectors General. And they did an uneven post on which Senators might be most likely to oppose Trump (which was perhaps too early to note that Utah’s Senator-elect John Curtis was among the first to go on the record with concerns about Matt Gaetz). Mike Rounds gave a hawkish interview in support of Ukraine. And after Lisa Murkowski said (in a little-noticed Alaska interview) that she won’t vote to confirm any Trump nominee who has not undergone an FBI background check, four more Senators — Susan Collins, Kevin Cramer, Rounds, as well as Joni Ernst — joined Murkowski in expressing support for background checks (though without making them a litmus test), with Bill Hagerty scoffing at the entire idea that they’re necessary.

There are far too many Democrats dismissing the possibility that there can be meaningful opposition to Trump from Congress. The Senate, especially, held up some of Trump’s plans the first go-around, even before he sicced an armed mob on them. And if nothing else, these people love their own prerogatives, and so will — at least selectively — defend those (as the bid to insist on FBI background checks would be a means to do).

More importantly, we don’t have the luxury of assuming Republicans will routinely capitulate to Trump: It is the job of the Democratic party, at this point, to give them cause to do so. Yes, Mitch McConnell failed in 2021 when he had an opportunity to disqualify Trump. He will have further opportunities to amend his own failure, and it’s simply not an option not to fight to get him to do so. Not least, because the mere act of doing so effectively may have an effect in 2026, if elections are really held.

And that’s why I’ve been trying to identify what I’m calling the Scott Caucus: The (just) 13 Republicans who voted for Rick Scott in the first round of the election for Majority leader. There was a good deal of pressure, including from online influencers who can elicit mob and also Elon Musk, the mobster incarnate, to vote for Trump’s pick for Majority Leader, Scott. But he lost in the first round of voting, with a reported outcome of:

• Thune 23
• Cornyn 15
• Scott 13
• Not voting 2

Thune won the second round between him and Cornyn 29-24.

To repeat: Just 13 members of the Senate voted, on a secret ballot, for Trump’s preferred candidate for Majority Leader. There’s undoubtedly a lot that went into that vote, but the 38 Senators who affirmatively voted against Scott are people who voted, at least partly, against capitulating to Trump.

We don’t know who all is included in that list, but these people publicly endorsed Scott:

1. Marsha Blackburn
2. Ted Cruz
3. Hagerty
4. Ron Johnson
5. Mike Lee
6. Rand Paul
7. Marco Rubio
8. Tommy Tuberville

I suggested that this vote, of the people who voted against Charles Q. Brown to be Chairman of the Joint Chiefs of Staff, might be a proxy for other Senators who prefer gross politicization against basic competence — though according to his public statements, Josh Hawley voted for Thune.

Whoever the other five people are (Rubio, of course, will be replaced once he is confirmed as Secretary of State), they’re just a small fraction of the GOP Senate.

Republicans will enjoy their time in the majority, and most of the time most Republican Senators will gleefully support what Trump will do.

But when given a choice to capitulate immediately or to uphold their own prerogatives, an overwhelming majority of Republican Senators voted to defend their own privilege.

Greg Sargent had a column proposing ways for Democrats to really challenge Pam Bondi at her confirmation hearing. He describes it as an opportunity to expose how badly she’ll be willing to politicize rule of law.

Democrats should start thinking right now about the opportunity presented by Bondi’s Senate confirmation hearings next year. This will be a major occasion to unmask just how far she’ll gladly go in corrupting the rule of law and unleashing the state on all the “vermin” he has threatened to persecute.

“The attorney general will be the weaponizer-in-chief of the legal system for Trump,” Representative Jamie Raskin, Democrat of Maryland, told me.

While I agree with Sargent’s premise — Democrats should treat Bondi’s confirmation hearing as an opportunity — I disagree with his proposed approach (and that espoused by Jamie Raskin, whom he quotes at length).

Sargent’s focus is on how Bondi would act under predictable eventualities.

Trump has threatened to prosecute enemies without cause. How will Bondi respond when he demands such prosecutions? He has vowed to yank broadcasting rights to punish media companies that displease him and send the military into blue areas for indeterminate pacification missions. His advisers are reportedly exploring whether military officers involved in the Afghanistan mission can be court-martialed. Raskin says Bondi should be confronted on all of this: “Ask whether she thinks the First Amendment and due process are any impediment to what Trump has called for.”

But this is precisely the approach that failed with Bill Barr, who months after a contentious confirmation hearing, kicked off the process of politicizing DOJ.

Most tellingly, Barr was asked questions about the kind of foreseeable eventualities that Sargent describes (such as, pardons for January 6ers), and it did no good. Patrick Leahy, Amy Klobuchar, and Lindsey Graham all asked Barr whether pardoning someone for false testimony would amount to obstruction. Every time, Barr at least conceded the potential applicability of obstruction in that case. And then, just months after that hearing, when Barr wrote a declination memo for Robert Mueller’s obstruction charge, he simply ignored the pardons. He didn’t mention them at all. While it took years for us to learn how he had reneged on his own stated views (by simply ignoring them), those setting these expectations never found a way to hold him accountable for the dodge.

That said, January 6 Committee staffer Thomas Joscelyn, whom Sargent also quotes, gets a bit closer to the approach I’d recommend. Don’t ask Bondi whether she would do something; make sure you lay out her responsibility for inevitable consequences when things she’s likely to do have untoward effects.

“What happens if Trump pardons the Proud Boys leaders who were convicted for seditious conspiracy and instigating the violence?” said Tom Joscelyn, a lead author of the Jan. 6 Committee report, in suggesting lines of questioning for Bondi. “What about the dozens of defendants convicted of assaulting cops?”

Joscelyn adds that pardons for them would provide a major boost to violent far right extremist groups in this country and would “legitimize their cause.” Dems should confront Bondi with all of that. Make her own every last bit of it.

Where I’d add to what Joscelyn suggests is with Trump’s past history.

Rather than asking Bondi about something we know will happen going forward (political violence from freed militia members), ask her how she’ll avoid the negative consequences Trump’s past actions already had. Rather than asking Bondi whether she’ll be responsible for Proud Boy violence when Trump pardons them, instead note that Bill Barr treated threats  the Proud Boys and Roger Stone made against Amy Berman Jackson as a technicality, only to have them plan an insurrection 18 months later. “Bill Barr’s coddling of Trump’s far right extremists led to a predictable increased threat, an attack on the Capitol. How will you avoid the same mistake?” It uses the confirmation hearing to lay out the consequences of past corruption.

You can use this approach with pardons more generally. “Because Trump didn’t properly vet his pardons the first time around, at least seven of them quickly returned to crime, with many of them beating their spouses. How will you ensure that Trump’s bypassing of normal pardon protocol don’t put violent men back on the streets?” You can pick some of the January 6ers — like hardened criminal Shane Jenkins, who almost had a fundraiser at Bedminster, or NeoNazi Timothy Hale-Cusanelli, who did — to ask Bondi how coddling such criminals is consistent with the law-and-order promises she makes.

The difference, so far, is subtle: Using the hearing to show past consequences for Barr or Trump’s own failures, rather than generically predicting future woes.

But that difference becomes more important when adopting a more important focus for the hearing.

Like the legitimization of far right extremists that Joscelyn predicts, we can predict a number of other inevitable outcomes from Trump’s second term. The most important is that as billionaires like Elon Musk loot the government, government service will decline precipitously, only exacerbating the alienation of many of the people who voted for Trump. And when those same billionaires get impunity from Trump’s DOJ, consumers will have their lives ruined. But Trump will work hard to blame scapegoats: liberals, trans people, and unions, rather than the billionaires Trump chose to given direct control over the looting process.

Democrats need to build in accountability for the corruption from the beginning. They need to explain that a crash in life quality is the inevitable consequence of Trump’s corruption and — just as important because committed MAGAts are more likely to turn on others before they turn on Trump — his billionaire appointees and protected buddies.

And Pam Bondi offers a spectacular way to lay that out, because she has been involved in protecting the villains who harmed Trump supporters in the past.

“Ms. Bondi, these ardent Trump supporters who signed up for Trump University racked up debt but got nothing from their degrees. How will you avoid such abuse of consumers going forward?”

“Ms. Bondi, after you fired the attorneys who were investigating banks foreclosing based on dodgy paperwork, millions of Floridians lost their homes. How will you protect Americans from similar business fraud going forward?”

“Ms. Bondi, after you and Rudy Giuliani made false claims about the vote in Pennsylvania, many of them threw their lives away by attacking the Capitol. How will you ensure that such lies don’t harm Trump supporters going forward?”

There are similar questions she can be asked that will anticipate other actions she’s likely to take — like shutting down investigations into Elon Musk’s various stock manipulations and false claims. “Ms. Bondi, how will you protect consumers who purchased cars falsely sold as self-driving?”

There are other questions that might get at Bondi’s past complicity. “Ms. Bondi, why did you and Trump’s other impeachment defense attorneys claim Trump’s demand for an investigation into Burisma was a pursuit of corruption, when Trump’s own DOJ had just shut down a 3-year investigation into Mykola Zlochevsky’s corruption?”

But the most important questions can and should be framed in terms of the Trump supporters whom her past corruption has harmed.

Democrats are not going to prevent Bondi’s confirmation. They’re also not going to get reassurances that Bondi will protect the integrity of the Department; Bill Barr’s prevarications prove that’s futile.

But they can use the high profile confirmation process as a way to lay out what should be a relentless message going forward: corruption hurts the little guy. Trump’s past corruption has hurt his supporters. Bondi’s past corruption has hurt his supporters.

That’s what the Republicans who will confirm her should have to own: the inevitable consequences of her protection of Trump’s corruption and that of the other billionaires who will be swarming his administration.