If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

SDNY Calls DOJ’s Definition of the Espionage Act an “Academic Interest”

DOJ has now responded to my intervention in the Joshua Schulte case. Presumably because my motion, written by Kel McClanahan, focused on how flimsy the government’s claim to keep transcripts of a CIPA conference hidden, the government’s response pitches this as exclusively a CIPA battle. It’s totally a reasonable legal stance.

But along the way, in apparent effort to distract from the topic at issue — in part, the application of the Espionage Act to journalism — SDNY suggests it is just an academic interest whether DOJ would charge someone for sharing classified information already published by the NYT.

The mere fact that someone would like to know information is not a part of the right-of-access analysis, however, and the Government’s motion should be granted.

[snip]

Intervenor’s desire to speculate as to the potential application of the Government’s articulation of the elements of an offense to other circumstances has no bearing on the ability of the public to monitor or assess the actual rulings of the Court in the CIPA § 6 hearings to which Intervenor demands access.

[snip]

[T]he question is not whether redacted transcripts are coherent as a matter of language or whether they might be relevant to Intervenor’s academic interest.

I’m the intervenor here, not McClanahan (who is a professor on national security law at GW Law). I need to know this stuff not just to cover WikiLeaks (I’m more of an expert than the expert SDNY relied on in the first trial, Paul Rosenzweig), but also to understand my own exposure as a journalist.

Not once in the filing does the government use the words “Espionage Act.” Not once does DOJ mention “journalist.” Not once does it mention the NY Times, the hypothetical that DOJ is attempting to hide, which (as Judge Jesse Furman described in a court hearing) is this:

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

The government is no doubt exploiting the emphasis in my filing, but the notion that whether I can be charged for doing journalism is not an academic interest! It’s not just that there is an acute interest, amid the Julian Assange extradition proceedings, to know the government’s thinking about the Espionage Act, it goes to the chilling effect of not knowing what I can safely publish in the course of doing my job. I don’t have the luxury of “speculating” about the application of the Espionage Act, because if I guess wrong, I could be imprisoned for a decade.

The government wants this to be about CIPA. But the problem is that the government is attempting to hide something that is not classified — the elements of offense for a serious crime that can chill the ability to do journalism — via claims about CIPA.

Third, Intervenor asserts a First Amendment right of access premised on the assertion that “the Government present[ed] legal arguments about elements of the crime itself,” which Intervenor claims both have traditionally been open to the public and are of value to the monitoring of the judicial process. (D.E. 988 at 2). Intervenor’s contention that legal arguments the Government may have advanced at the Section 6 hearings are “something that interested persons in the field should know” (id. at 3) simply “cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding.” United States v. Cohen, 366 F. Supp. 3d 612, 631 (S.D.N.Y. 2019). Contrary to Intervenor’s suggestion that discussion of the elements of an offense “stray[s] far from a simple discussion of evidentiary issues” (D.E. 988 at 3), such discussion is integral to virtually any assessment of the relevance and admissibility of evidence, including that occurring in CIPA § 6 hearings, in which courts “look to what elements must be proven under the statute,” United States v. McCorkle, 688 F.3d 518, 521 (8th Cir. 2012); see also United States v. Bailey, 444 U.S. 394, 416 (1980) (describing need to “limit[] evidence in a trial to that directed at the elements of the crime”).

Tellingly, SDNY’s citation of a 2019 District opinion relating to the unsealing of Michael Cohen’s search warrants — which were released with redactions, the desired goal here! — is inapt to the question of whether the government should be able to hide its discussions of how it understands the Espionage Act by claiming that that needs to be protected as classified information.

Considerations of logic also counsel against recognizing a First Amendment right to access search warrant materials. Of course, public access to search warrant materials may promote the integrity of the criminal justice system or judicial proceedings in a generalized sense. United States v. Huntley943 F.Supp.2d 383, 385 (E.D.N.Y. 2013) (remarking that “the light of the press shining into the innards of government is necessary to inhibit violation of the public trust”). But such an argument cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding. Cf. Times Mirror Co.873 F.2d at 1213 (rejecting as overbroad the argument that the First Amendment mandates access to any proceeding or document that implicates “self-governance or the integrity of the criminal fact-finding process”); In re Bos. Herald, Inc.321 F.3d at 187 (“In isolation, the [rationale that the public must have a full understanding to serve as an effective check] proves too much—under it, even grand jury proceedings would be public.”). As the Ninth Circuit aptly observed, “[e]very judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government.” Times Mirror Co.873 F.2d at 1213.

Understanding the law is a matter that precedes the media’s scrutiny of whether the government abused the Espionage Act in this case (or in Julian Assange’s). And while the elements of the offense of the Espionage Act does dictate whether evidence would be helpful or not to the defense — the consideration of a CIPA hearing — ultimately this debate was about (and significantly appeared in) jury instructions, the law as applied.

Again, SDNY’s stance seems tactical, a response to our filing’s greater focus on matters of classification than the status of the press. But the outcome — SDNY’s claim that I have the luxury of merely “speculating” about the application of the Espionage Act — is alarmingly arrogant.


I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

Supporting Those Who Make Good Trouble

Magnet available from the American Library Association

I called it good trouble. I called it necessary trouble. And ​every so often, when you see something that is not right, not fair, not just — you have to say no, no.”

–John Lewis

In my work as a pastor, I cross paths with a lot of “Good Trouble” makers. Some are church-related and others not religious at all. Some are connected with big international groups, others work at the national or state level, and still others are involved with seat-of-the-pants local organizations with a small board and a couple of key volunteers. What they all have in common is what John Lewis talked about – they saw something that is not right, not fair, not just, and they said no. They said “no” to what is, and then rolled up their sleeves to say “yes” to what is needed.

As we approach the end of the year, I want to lift up a number of these makers of Good Trouble. If you want to enjoy their stories, read on and then go link-hopping through their websites. If you share their passion for standing up against a particular wrong, a specific injustice, or a structural unfairness, I urge you to make a little Good Trouble of your own, by finding the “Donate” buttons on their websites and help them out.

Legal Disclaimer #1: What follows are *my* comments, and do not imply any endorsement by Emptywheel.net, Marcy Wheeler, or anyone else here at EW. Information at the links (or quoted here from their websites) are, of course, the statements of those groups, and they are responsible for how they describe themselves.

One group of Good Trouble makers I interact with a lot are those involved in feeding the hungry — hungry being people without homes who have been caught in economic distress to entire communities devastated by a natural disaster. Either way, the Good Trouble makers in the groups below are people who see someone in need of a basic meal and say “this is not right, not fair, not just — we gotta get these folks some food.”

Feeding America:

Feeding America is the largest hunger-relief organization in the United States.

Our mission is to advance change in America by ensuring equitable access to nutritious food for all in partnership with food banks, policymakers, supporters, and the communities we serve.

Feeding America is an umbrella organization made up of food banks that span the country. A food bank is a wholesale operation, designed to collect donations (especially in-kind) from farmers and food companies and then making them available at little or no cost to local food pantries who do the retail work of distributing it to those in need. Feeding America has a big directory of regional food banks, and each of these food banks has its own list of food pantries they support.

Here in metro Kansas City, Harvesters is our food bank, and I’ve worked with them and a number of food pantries they support. Harvesters is a top-notch, transparent operation, and they expect nothing less from the food pantries that utilize them. To gain access to Harvesters, a food pantry has to have their location inspected and their leaders have to go through a Harvesters training program, in part to familiarize themselves with the Harvesters reporting obligations,  and in part to make sure that the gifts Harvesters has received are put to good use. No letting stuff spoil, no making clients sick, and no taking some off the top for your own organization.

Harvesters provides food and related household products to more than 760 nonprofit agencies including emergency food pantries, community kitchens, homeless shelters, children’s homes and others. We also offer education programs to increase community awareness of hunger and teach about good nutrition.

Harvesters is a certified member of Feeding America, a nationwide network of more than 200 food banks. In 2011, Harvesters was Feeding America’s Food Bank of the Year. We are a registered 501(c)3 nonprofit organization.

One big element of of Harvesters is that they require that any food pantry that uses their resources must be completely free to the people in need, and free of any religious requirements. Not only can these groups not charge any financial fees, but they cannot require their patrons to attend a bible study or other religious event. A church-run pantry can say “We operate this food pantry because of our Christian faith” but they cannot require people to attend worship before getting a couple sacks of food.

If you are interested in dealing with food insecurity in the US, whether at a national, regional, or street level, Feeding America and its affiliates offer a wealth of places that could use your support.

Other hunger-related organizations are aimed at disaster relief. Two that I long have supported are World Central Kitchen and Operation BBQ Relief (a group that our own Jim White works with). These are groups that come in after a disaster has hit, and work to get the community back on its feet with immediate support, feeding both the local residents affected by the disaster as well as the medical folks, utility crews, and others who have come to deal with the medical and logistical work of recovery.

World Central Kitchen:

WCK responds to natural disasters, man-made crises, and humanitarian emergencies around the world. We’re a team of food first responders, mobilizing with the urgency of now to get meals to the people who need them most. Deploying our model of quick action, leveraging local resources, and adapting in real time, we know that a nourishing meal in a time of crisis is so much more than a plate of food—it’s hope, it’s dignity, and it’s a sign that someone cares.

Operation BBQ Relief:

Armed with a caravan of cooks, mobile pits, kitchens and volunteers, Operation BBQ Relief delivers the healing power of BBQ in times of need, feeding first responders and communities affected by natural disasters along with year-round efforts to fight hunger through The Always Serving Project® and Camp OBR™ programs.

Another group of Good Trouble makers that I am becoming more familiar with are those who work and speak from the margins of society. Some groups work to challenge those at the center, those with the power, those whose work is causing pain at the margins. Other groups work with those at the margins to simply say “we are here,” lifting up and encouraging one another not to be content with scraps from the master’s table. Note, please, that both groups do challenging and uplifting things, just with a different emphasis and approach.

For example, consider the following groups, all associated with the Native American community.

Association on American Indian Affairs:

The Association on American Indian Affairs is the oldest non-profit serving Indian Country protecting sovereignty, preserving culture, educating youth and building capacity. The Association was formed in 1922 to change the destructive path of federal policy from assimilation, termination and allotment, to sovereignty, ​self-determination and self-sufficiency. Throughout our 100-year history, we have provided national advocacy on watershed issues that support sovereignty and culture, while working at a grassroots level with Tribes to support the implementation of programs that affect real lives on the ground.

Native American Rights Fund:

Our Mission: The Native American Rights Fund holds governments accountable. We fight to protect Native American rights, resources, and lifeways through litigation, legal advocacy, and legal expertise.

Native American Journalists Association:

NAJA serves and empowers Native journalists through programs and actions designed to enrich journalism and promote Native cultures.

NAJA recognizes Native Americans as distinct peoples based on tradition and culture. In this spirit, NAJA educates and unifies its membership through journalism programs that promote diversity and defends challenges to free press, speech and expression. NAJA is committed to increasing the representation of Native journalists in mainstream media. NAJA encourages both mainstream and tribal media to attain the highest standards of professionalism, ethics and responsibility.

Indian Country Today:

Telling the stories of indigenous communities by indigenous journalists is at the core of Indian Country Today. Since our beginnings in 1981 as a weekly newspaper, ICT has grown into the largest news organization serving Native American communities. In April 2020, we expanded into public broadcasting through a daily newscast about how the coronavirus pandemic has affected American Indians, First Nations and Alaska Natives.

With this bold new step into public television, Indian Country Today has become a spacious channel through which it distributes news across multiple platforms. Coverage includes digital, print and broadcast news outlets featuring top stories, news, lifestyle and classified job listings.

American Indian Science and Engineering Society:

The American Indian Science and Engineering Society (AISES) is a national nonprofit organization focused on substantially increasing the representation of Indigenous peoples of North America and the Pacific Islands in science, technology, engineering, and math (STEM) studies and careers.

Founded in 1977, growing the AISES membership above our current 5,900 individual members is key to achieving our mission. AISES supports 230 affiliated pre-college schools, 196 chartered college and university chapters, 3 tribal chapters, and 18 professional chapters in the U.S. and Canada. We promote the highest standards of education and professional excellence to widen the STEM workforce and grow sector support. We highlight the geographic, economic, and social aspects of STEM education and careers.

In addition to awarding nearly $12 million and counting in academic scholarships, AISES offers internships, professional development and career resources, national and regional conferences, leadership development summits, and other STEM-focused programming.

I could go on like this for a long time, but let me offer just one more example of Good Trouble makers, whose passion is to stand against book banning and book burning.

In both Kansas and Missouri, public libraries and public schools are seeing more and more challenges to books written by Good Trouble makers who write to address matters of race, gender, sexual orientation, and other similar things. The folks challenging these kinds of books say “Don’t get political” but what they really mean is “Don’t trouble the waters and make us look at uncomfortable things.”

On the one hand, the fact that these folks are upset with libraries and schools is a good thing. It means that the Good Trouble maker writers, librarians, teachers, and administrators are having an effect. They are making Good Trouble, and it’s causing problematic people to feel uncomfortable. On the other hand, these writers, librarians, teachers, and administrators need support, to encourage them to keep on keeping on.

PEN America:

PEN America stands at the intersection of literature and human rights to protect free expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

Founded in 1922, PEN America is the largest of the more than 100 centers worldwide that make up the PEN International network. PEN America works to ensure that people everywhere have the freedom to create literature, to convey information and ideas, to express their views, and to access the views, ideas, and literatures of others. Our strength is our Membership—a nationwide community of more than 7,500 novelists, journalists, nonfiction writers, editors, poets, essayists, playwrights, publishers, translators, agents, and other writing professionals, as well as devoted readers and supporters who join with them to carry out PEN America’s mission.

PEN America, a registered 501(c)(3) organization, is headquartered in New York City, with offices in Los Angeles and Washington, D.C. and chapters in seven regions.

American Library Association:

Founded on October 6, 1876 during the Centennial Exposition in Philadelphia, the mission of ALA is “to provide leadership for the development, promotion and improvement of library and information services and the profession of librarianship in order to enhance learning and ensure access to information for all.”

In pursuing our mission, the Association’s core value statements define our deepest aspirations and how we approach our work together. They are:

  • Extending and expanding library services in America and around the world
  • All types of libraries – academic, public, school and special
  • All librarians, library staff, trustees and other individuals and groups working to improve library services
  • Member service
  • An open, inclusive, and collaborative environment
  • Ethics, professionalism and integrity
  • Excellence and innovation
  • Intellectual freedom
  • Social responsibility and the public good
  • Sustainability

Like I said, I could go on like this for a long time.

But what I really want to know is this: Who are the Good Trouble makers that you know about, that you support, that you work with, that the rest of us should know about? Put them in the comments, give us a link, and tell us how they go about making Good Trouble.

Legal Disclaimer #2: What follows in the comments are the comments of the person posting them, and do not imply any endorsement by Emptywheel.net, Marcy Wheeler, or anyone else here at EW. Information at the links (or quoted here from their websites) are, of course, the statements of those groups, and they are responsible for how they describe themselves.

With the great mix of commenters here, I’m sure there are plenty of Good Trouble makers you’d like to lift up. I’m also confident that this is the kind of question that might draw out some of the lurkers here. Some do not comment because they feel out of their depth with the subject of many of the posts — but on this post, YOU are the experts, because YOU know who the Good Trouble makers are in your neighborhood.

So have at it, and tell us who makes Good Trouble that deserve props and support. Oh, and if you are so inclined, you can help support the Good Trouble made here at Emptywheel too.

On the Shoddy Journalistic Defense of “WikLeaks”

When it was first published, a letter that the NYT, Guardian, Le Monde, Der Spiegel, and El País signed, calling on the US government to drop the Espionage Act charges against Julian Assange, got the date of Assange’s arrest wrong — it was April 11, not April 12, 2019. The outlets have since corrected the error, though without crediting me for alerting them to it.

A correction was made on Nov. 29, 2022: An earlier version of this letter misstated the date of Julian Assange’s 2019 arrest. It was April 11th, not April 12th.

An email was sent by me and then a correction was made. No bill was sent for the free fact checking.

As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

For Julian Assange, publisher of WikLeaks, the publication of “Cablegate” and several other related leaks had the most severe consequences. On [April 11th] 2019, Assange was arrested in London on a US arrest warrant, and has now been held for three and a half years in a high-security British prison usually used for terrorists and members of organised crime groups. He faces extradition to the US and a sentence of up to 175 years in an American maximum-security prison. [my emphasis]

The slovenly standards with which five major newspapers released this letter suggest the other inaccuracies in the letter may be the result of sloppiness or — in some cases — outright ignorance about the case on which they claim to comment.

Take the claim Assange could serve his sentence in “an American maximum-security prison.” The assurances on which British judges relied before approving the extradition included a commitment that the US would agree to transfer Assange to serve any sentence, were he convicted, in Australia.

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

While the assurances that Assange wouldn’t be subject to Special Administrative Measures (basically contact limits that amount to isolation) aren’t worth the paper they were written on — partly because Assange did so much at the Ecuadorian Embassy that, if done in a US jail, would get him subject to SAMs, and partly because the process of designation under SAMs is so arbitrary — reneging on the agreement to transfer Assange to Australia would create a significant diplomatic row. A sentence in an American maximum-security prison is explicitly excluded from the terms of the extradition before Attorney General Garland, unless Assange ultimately chose to stay in the US over Australia (or Australia refused to take him).

The claim that he could be sentenced to 175 years, when the reality is that sentencing guidelines and concurrent sentences would almost certainly result in a fraction of that, is misleading, albeit absolutely within the norm for shoddy journalism about the US legal system. It’s also needlessly misleading, since any sentence he would face would be plenty draconian by European standards. Repeating a favorite Assange line, one that is legally true but practically misleading, does little to recommend the letter.

In the next paragraph, these five media outlets seem to suggest that the Computer Fraud and Abuse Act conspiracy alleged in “the indictment” is limited to Assange’s effort to crack a password.

This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.

It is — in the 2017 to 2019 charging documents. But not the one on which Assange is being extradited.

The hacking conspiracy, as currently charged, is a 5-year conspiracy that alleges far more than — and starts before — the password cracking seemingly described in the paragraph. It includes Assange’s use of Siggi’s credentials to access a police database to monitor any investigation into himself, a request to hack a former WikiLeaks associate, the recruitment of Anonymous hackers to target US-based companies (arguably also an attempt to aid in the computer intrusion of classified databases, albeit not US government ones), and the exploitation of WikiLeaks’ role in helping Edward Snowden flee to recruit more hacks including, explicitly, a sysadmin hack of the CIA’s classified databases like the one for which Joshua Schulte has now been convicted. (The existing indictment ends at 2015, before the start of Schulte’s actions, though I would be unsurprised to see a superseding indictment incorporating that hack, leak, and exposure of sensitive identities.)

Are these media outlets upset that DOJ has charged Assange for a conspiracy in which at least six others have been prosecuted, including in the UK? Are they saying that’s what their own journalists do, recruit teenaged fraudsters who in turn recruit hackers for them? Or are these outlets simply unaware of the 2020 indictment, as many Assange boosters are?

Whichever it is, it exhibits little awareness of the import that Judge Vanessa Baraitser accorded the hacking conspiracy to distinguish Assange’s actions from actual journalism.

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Whether editors and publishers at the five media outlets know that Assange was superseded in 2020 or not or just used vague language that could be read, given the actual allegations in the indictment, to suggest that some of them think Assange shouldn’t be prosecuted for conspiring to hack private companies, the language they included about the CFAA charge has led other outlets, picking up on this misleading language (along with the original error about the arrest date), to write at length about an indictment, with a more limited CFAA charge, that is not before Attorney General Merrick Garland. So maybe the NYT, Guardian, Le Monde, Der Spiegel, and El País know about the true extent of the CFAA charge, but by their vagueness, these five leading newspapers have contributed to overtly false claims by others about it.

Finally, the letter repeats WikiLeaks’ narrative about the changing DOJ views on Assange, presenting it as a binary between the “Obama-Biden” and Donald Trump Administrations.

The Obama-Biden administration, in office during the WikiLeaks publication in 2010, refrained from indicting Assange, explaining that they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences. Under Donald Trump however, the position changed. The DoJ relied on an old law, the Espionage Act of 1917 (designed to prosecute potential spies during world war one), which has never been used to prosecute a publisher or broadcaster.

This is a story WikiLeaks likes to tell even while incessantly publicizing a a story that debunks it. It is based on a public quote — made in November 2013 by former DOJ spox, Matt Miller, who left DOJ in 2011, about why DOJ wouldn’t charge Assange. But a Yahoo story last year included former Counterintelligence head Bill Evanina’s description of how the US approach to WikiLeaks began to change in 2013, after Miller left DOJ but still during the Obama Administration, based on WikiLeaks’ role in helping Snowden flee.

That began to change in 2013, when Edward Snowden, a National Security Agency contractor, fled to Hong Kong with a massive trove of classified materials, some of which revealed that the U.S. government was illegally spying on Americans. WikiLeaks helped arrange Snowden’s escape to Russia from Hong Kong. A WikiLeaks editor also accompanied Snowden to Russia, staying with him during his 39-day enforced stay at a Moscow airport and living with him for three months after Russia granted Snowden asylum.

In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks, according to Evanina, now the CEO of the Evanina Group.

Years earlier, CNN reported the same thing: that the US understanding of WikiLeaks began to change based on its role in helping Snowden to flee.

It should be unsurprising that the government’s approach to WikiLeaks changed after the outlet helped a former intelligence officer travel safely out of Hong Kong, because at least one media outlet made similar judgments about how that distinguishes WikiLeaks from journalism. Bart Gellman’s book described how lawyers for WaPo believed the journalists should not publish Snowden’s key to help him authenticate himself with foreign governments — basically, something else that would have helped him flee. Once Gellman understood what Snowden wanted, he realized it would make WaPo, “a knowing instrument of his flight from American law.” By his description, the lawyers implied Gellman and Laura Poitras might risk aid and abetting charges unless they refused a “direct attempt to enlist [them] in assisting him with his plans to approach foreign governments.” Like the US government, the WaPo judged in 2013 that helping Snowden obtain protection from other, potentially hostile, governments would legally go beyond journalism.

This is one reason clearly conveying the scope of the CFAA allegations is central to any credible commentary on the Assange case: because Assange’s exploitation of the Snowden assistance is an overt act charged in it. But five media outlets skip both the import of that act and its inclusion in the charges against Assange in a bid to influence the Biden Administration.

This WikiLeaks narrative also obscures one more step in the evolution of the understanding of Assange during the Obama administration, one that is more problematic for this letter, given that it would hope to persuade Attorney General Merrick Garland. Per the Yahoo article that WikiLeaks never tires of publicizing, the US government’s understanding of WikiLeaks changed still more when the outlet partnered with Russian intelligence on its 2016 hack-and-leak campaign.

Assange’s communication with the suspected operatives settled the matter for some U.S. officials. The events of 2016 “really crystallized” U.S. intelligence officials’ belief that the WikiLeaks founder “was acting in collusion with people who were using him to hurt the interests of the United States,” said [National Intelligence General Counsel Bob] Litt.

That’s important because, while the parts pertaining to WikiLeaks are almost entirely redacted, the SSCI Report on responses to the 2016 hack-and-leak makes it clear how central a role then-Homeland Security Advisor and current Deputy Attorney General Lisa Monaco played in the process. You’re writing a letter about which Garland would undoubtedly consult with Monaco. She knows that the gradual reassessment of WikiLeaks was no lightswitch that flipped with the inauguration of Donald Trump. Treating it as one provides one more basis on which DOJ could dismiss this letter. What changed wasn’t the administration: it was a series of WikiLeaks actions that increasingly overcame the “New York Times problem,” leading to expanded collection on Assange himself, leading to a different understanding of his actions.

Here’s why I find the sloppiness of this letter so frustrating.

I absolutely agree that, as charged, the Espionage Act charges against Assange are a dangerous precedent. That’s an argument that should be made soberly and credibly, particularly if made by leaders of the journalistic establishment.

I agree with the letter’s point that, “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” (though these same publishers decided that disclosing the names of US and coalition sources was not in the public interest, and Assange’s privacy breach in doing so was the other basis by which Baraitser distinguished what Assange does from journalism).

But so is fact-checking. So is speaking accurately and with nuance.

If you’re going to write a letter that will be persuasive to the Attorney General, it would be useful to address the indictment and extradition request as it actually exists, not as it existed in 2019 or 2020 or 2021.

And if you’re going to speak with the moral authority of five leading newspapers defending the institution of journalism, you would do well to model the principles of journalism you claim to be defending.

As noted, these outlets corrected the date error after I inquired about the process by which this letter was drafted. I have gotten no on-the-record comments about the drafting of this letter in response.

Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.

In the Wake of Trump’s Third Electoral Failure, NYTimes Boasts of Hiring a Third Trump-Whisperer

His sanction-worthy misrepresentations of the Igor Danchenko indictment notwithstanding, Jonathan Swan is a good reporter. Indeed, his move to the NYT, which frees him to write like a human being rather than a McKinsey consultant (AKA Axios style), will likely be a significant improvement on his coverage of DC politics.

But it is downright insane that, at a time the GOP and Fox News are at least making noise about ditching Trump, the NYT pitched this hire — and their own political reporting — in terms of Trump.

Our insightful, authoritative and addictive coverage of the election this year drove home an essential truth: The Times’s political team is simply the best in the business.

Take our coverage of Republicans and Donald J. Trump.

We have Maggie Haberman, the dominant reporter of the Trump era, whose prolific, revealing and exclusive coverage has become indispensable to millions of readers. We have Michael Bender, whom Maggie admired as her “fierce competitor” from his days at The Wall Street Journal, and who has delivered exclusives on everything from the former president’s plans to buy Greenland to examinations of how Trumpism remade the Republican party.

And today we are thrilled to tell you that Jonathan Swan, a gifted, dogged and high-impact reporter, will be joining The Times. Jonathan, a national political reporter at Axios, is one of the biggest news breakers and best-sourced reporters in Washington.

Even if you have never met Jonathan, you know his stories. He first reported that Trump would recognize Jerusalem as Israel’s capital, that the U.S. would pull out of the Paris climate deal, that Steve Bannon would be fired and that Paul Ryan would retire from Congress.

Or perhaps you watched his riveting interview with then-President Trump in 2020, which won Jonathan an Emmy (and made his facial expressions famous.) Ben Smith, the former media columnist for The Times, wrote at the time that it was “perhaps the best interview of Mr. Trump’s term.’’

Jonathan’s nine-part written series on the final days of the Trump administration won broad acclaim, and the podcast on which it was based rose to No. 1 on the Apple charts. [my emphasis]

Again, I think the Swan hire is a net good for reporting — but aside from the degree to which Swan is an improvement over Jonathan Martin, who just moved to become Politico’s Politics Bureau Chief — that has nothing to do with the NYT.

Particularly accompanied as it is by Maggie’s multiple efforts to suggest Trump is still The One, the pitch of Swan as a Trump-whisperer — rather than simply as a very good reporter of right wing politics — this announcement commits to keeping Trump (as a politician, rather than, for example, a criminal suspect, something none of these three are very good at reporting) the center of attention.

And it comes in a piece that boasts of election reporting it calls, “insightful, authoritative and addictive,” but which had some rather spectacular failures — particularly with the Fettrman debate and a correct Kansas poll they downplay. While in August NYT acknowledged that a Red Wave might not come, their review of why it didn’t still seems to misunderstand what it means to vote to save democracy. If you wanted to understand the election, the NYT was generally unhelpful, and that’s before you consider its focus on horse race coverage rather than policy.

They think they did good a job, or at least are telling themselves they did!

Why would you boast that your political reporting is “addictive,” anyway? unless you’re proud of the way Trump used Maggie’s work to flood the zone with press clippings that had the effect of obscuring larger crimes.

The NYT’s pitch of a good reporter in terms of Trump comes as other outlets have made hires based on their shitty news judgment that there would be a Republican wave the outlet would want access into. Most famously, as early as March, CBS hired Mick Mulvaney in anticipation of a non-existent Red Wave still 8 months in the future.

[A] top network executive seemed to lay the groundwork for the decision in a staff meeting earlier this month, when he said the network needed to hire more Republicans to prepare for a “likely” Democratic midterm wipeout.

“If you look at some of the people that we’ve been hiring on a contributor basis, being able to make sure that we are getting access to both sides of the aisle is a priority because we know the Republicans are going to take over, most likely, in the midterms,” CBS News’s co-president Neeraj Khemlani told the staff of the network’s morning show, according to a recording of his comments obtained by The Washington Post. “A lot of the people that we’re bringing in are helping us in terms of access to that side of the equation.”

The thing is, these shitty expectations for a Republican landslide may distort coverage going forward, because multiple news outlets paid big money to invest in access to people who lost, most of all into a guy who lost fairly spectacularly three times now.

As they did in 2020, voters gave democracy another lifeline. They voted, affirmatively, for democracy. But it’s not clear the press view protecting democracy, as opposed to protecting access, with anywhere near the same urgency.

Update: Just as I published this piece, I saw this NYT column, which not only continues to make everything about Donald Trump, fails to account for how narrow margins in both houses change this calculus (particularly with regards to its facile claim that, “party leaders are asked to declare their allegiances to Mr. Trump or other potential rivals”), and has this incredible paragraph:

 First there was Mr. Trump’s proposed Muslim ban, and then the attacks on a federal judge’s Mexican ancestry, the “Access Hollywood” revelations late in the 2016 campaign, his public declaration that he trusted Vladimir Putin more than he did American intelligence agencies.More recently, Mr. Trump has waged a two-year misinformation campaign, claiming his 2020 defeat was “rigged.” His supporters stormed the U.S. Capitol in a violent attempt to disrupted the peaceful transfer of power. He now faces investigations into efforts to overturn the election results in Georgia, into his company’s finances and into his handling of classified documents.

It gets the chronology of the first sentence wrong. It calls Trump’s lies about 2020 “misinformation,” not “disinformation.” It claims he tried to “disrupted” the peaceful transfer of power and not prevent it. It suggests any investigation into an attempt to overturn the election is limited to Georgia. The description of the stolen document investigation as one into “handling” of classified documents misstates the crime, but it par for the course in legacy media coverage of that investigation. (And it has a typeset — with the missing space after the period — and a tense error that suggests it was not edited, even ignoring the lack of Oxford comma.)

Trump no doubt wants to keep himself as the center of attention. He no doubt will demand loyalty oaths from people willing to bet he’ll succeed. But if he does succeed — with whatever catastrophic effect on the country — it will be significantly because of editorial decisions the NYT made.

Aileen Cannon Is Stiff-Arming the Press

I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

The Gaslighter’s Psychiatrist: My Response to Dan Drezner

I wasn’t going to weigh in on the latest kerfuffle over Maggie Haberman. She wrote a book. It reveals things that would have been useful to know years ago. On several key points (such as what Trump did with the Strzok and Page texts), she seems unaware of related details that undermine her claims to exclusive smarts. The kerfuffle is not that interesting to me.

But Dan Drezner said two things in defense of her that are so fascinating, I couldn’t resist.

His most substantive defense of Maggie, bullet point 1, halfway into his post, is that most other politicians would not have remained standing after her stories.

Haberman is a pretty great reporter! Her stories on Trump were chock-full of tidbits that would have destroyed the standing of most other politicians. That Trump remained standing (sort of) after every one of her bombshell stories is a source of frustration to many, but Haberman is hardly to blame for this.

Drezner, who is a news-savvy political science professor with a column, not a journalist, spends much of the rest of his post lecturing about how journalism works.

For all the lecturing, he doesn’t note the most curious journalistic fact about Maggie’s book tour, at least to me: not that she delayed stories for the book, not necessarily that she’s telling stories she could have told in 2016 or 2018 or 2020 but did not, but that none of the teaser exclusives are being published at the NYT. The Atlantic, CNN, Axios, WaPo’s own Trump-whisperer — they’re the ones getting traffic from Maggie’s tidbits this week, not the NYT. After I started this, Joe Klein — better known as Joke Line!! — did a fawning review of the book in the NYT, but that’s not news or even, given that it was written by Joke Line, marginally reliable (though it may nevertheless be the most unintentionally insightful piece on the book).

When James Risen’s book about George Bush’s war on terror abuses was shunned by the NYT, it was a symptom of far more significant problems at the newspaper, problems that had to do with that outlet’s relationship to the Presidency (or perhaps Vice Presidency). Who knows whether that’s the case here. But it does raise questions about whether something is going on that explains NYT’s choice to let their star Trump-whisperer scoop them in virtually all the competing outlets — or whether they even had a choice in the matter.

Like I said, Drezner is a political science professor, so perhaps it was no surprise he missed what I find to be a more interesting curiosity about Maggie’s book blitz.

But he’s a political science professor, and so I would have welcomed some reflection about why he believes most other politicians, but not Trump, would have been destroyed by Maggie’s tidbits. Do Maggie’s strengths and weaknesses as a journalist offer any insight into Trump’s unique resilience? Is she a symptom of it? Or one of the causes? Those seem like utterly critical questions for political science professors as we try to stave off fascism in the United States.

As an access journalist, Maggie rises and falls with the subjects of her access. And this book — the payoff for years of access — is not just a story about Trump. It’s a story of her access, the transactional relationship it entailed, what Trump does with those he has selected to be witnesses to his power.

In the Atlantic excerpt of her book, Maggie famously described Trump likening her to his psychiatrist. She used that as a cue to close the piece with her wisdom about Trump — written in the first person but often, not always, quoting Trump’s direct speech, heightening both her own status as omniscient narrator but also the degree to which she is a manufactured character in her own book.

Then he turned to the two aides he had sitting in on our interview, gestured toward me with his hand, and said, “I love being with her; she’s like my psychiatrist.”

It was a meaningless line, almost certainly intended to flatter, the kind of thing he has said about the power of release he got from his Twitter feed or other interviews he has given over the years. The reality is that he treats everyone like they are his psychiatrists—reporters, government aides, and members of Congress, friends and pseudo-friends and rally attendees and White House staff and customers. All present a chance for him to vent or test reactions or gauge how his statements are playing or discover how he is feeling. He works things out in real time in front of all of us. Along the way, he reoriented an entire country to react to his moods and emotions.

I spent the four years of his presidency getting asked by people to decipher why he was doing what he was doing, but the truth is, ultimately, almost no one really knows him. Some know him better than others, but he is often simply, purely opaque, permitting people to read meaning and depth into every action, no matter how empty they might be.

We’re all like Maggie, omniscient narrator Maggie explains, all just bit players serving as a sounding board to witness him ramble for 20 minutes, all the while cutting us off so he can find the precise word he wants. But maybe not. In the next paragraph, first person Maggie reminds us that everyone else asks her, the sounding board Trump likens to his shrink, to “decipher” him. And this woman who stages herself as a participant in three interviews in this piece, concludes not that she’s got no insight, but that he’s simply opaque, something that we — including Maggie the character portrayed interviewing Trump — project our interpretations of depth onto.

Maggie sells herself as the false promise that you might get to know Trump through his quoted lies and not through his means or his deeds, not through understanding how those lies and the way they are circulated wielded power.

And that, Drezner observes, didn’t end up sticking to Trump the way it would other politicians. That seems like a really important insight.

Which brings me to the other thing Drezner set me off with.

The best explanation of Maggie’s work he offers — and it’s a frightfully good explanation — is the way he starts his post:

When I was curating the Toddler-in-Chief thread on Twitter and adapting it into The Toddler in Chief, I leaned pretty hard on Maggie Haberman’s reporting for the New York Times. I literally said, “Maggie Haberman’s reportage… is all over that thread.”

Drezner was talking about his interminable chronicle of Trump’s tantrums. Each tweet screen capped an example of Trump’s closest aides bitching to someone — and yes, that someone was often Maggie — about how they had to coddle Trump, how they built the entire Administration to cater to Trump’s every mood or emotion. In each tweet, Drezner the political science professor would categorize this report as yet more proof that Trump was not “growing into the presidency.” I took the observation as shorthand for false expectations of normality after Trump’s election, a hope that it wouldn’t be so bad after Trump came to understand the gravity of the office. Drezner contines to cling to that observation, even after Trump’s failed coup attempt.

I found the series funny and occasionally baited Drezner on it. It was a worthy observation about false reassurances certain pundits made about Trump. But it ended up being an inadequate rubric for understanding the damage Trump could do as we all laughed at his ineptitude.

In retrospect there were probably better ways to try to convey the danger posed by Trump than to serially mock him on Twitter, reinforcing the editorial decisions that treated his tantrums but not his actions as the news, even while exacerbating the polarization between those who identified with Trump’s tantrums and those who with their fancy PhDs knew better.

And Drezner’s first impulse, when defending Maggie’s journalism, was to point to the sheer number of times she obtained a hilarious quote that served as another artifact in a never-ending string of news stories that treated Trump’s tantrums as the news, rather than the actions Trump pulled off by training people to accommodate his tantrums.

Those stories, individually and as a corpus, revealed Trump to be a skilled bully. But those stories of Trump’s bullying commanded our attention, just like his reality TV show did, and reassured him that continued bullying would continue to dominate press coverage.

That press coverage, I’m convinced, not only was complicit in the bullying, but also served as a distraction from things that really mattered or levers that we might have used to neutralize the bullying.

It was power by reality TV. And Maggie Haberman was and remains a key producer of that power.

Update: Drezner did a really thoughtful response here. I totally agree with this point:

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

His discussion of how great stories reporting on scandal barely blip in the coverage, however, goes right to my biggest gripe with Maggie. Drezner denies that Maggie’s reporting serves to distract from real crimes.

The part unique to Trump is his abject lack of shame. Some scandals that bring politicians down involve illegality, but most involve the revelation of actions or statements that are either embarrassing or completely at odds with their public positions. Most politicians are human beings who embarrass easily, and so are vulnerable to scandal. They will withdraw from the stage to avoid further unwanted attention. Trump’s entire career, by way of contrast, gloried in scandal. During the 2016 campaign he contradicted himself constantly, said and did repugnant things, and did not care a whit. As Ezra Klein noted way back in 2015, that was Trump’s political superpower: “This is Donald Trump’s secret, his strategy, his power…. He just doesn’t fucking care. He will never, ever give an inch. Better to be a monster than a wuss. You cannot embarrass Donald Trump.”

This would not have mattered if two other trends that I discussed at length in The Ideas Industry had not also kicked in: the rise in political polarization and the erosion of trust in institutions. These two trends created a permission structure in which ordinary Republicans could dismiss damning Maggie Haberman stories in the New York Times as fake news. Even if Haberman (and every other reporter) had published absolutely everything she knew in real time, it would not have affected this dynamic.

But Maggie’s access and the way Trump’s associates exploit her — gleefully — makes it really easy to play her to kill a story. Her limited hangouts then become the breaking news, rather than the real details disclosed by an investigation.

Both on specific parts of the Russian investigation — such as Paul Manafort’s sharing of campaign strategy in the same meeting where he talked about $19 million in financial benefits to him — and more generally — such as Maggie and Mike Schmidt’s demonstrably false claim that Trump was only investigated for obstruction — stories involving Maggie helped Trump and his associates cover up his criminal exposure.

What Family Rifts at Funerals can Teach Us About Pardoning Presidents

Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.

 

The Redacted Mar-a-Lago Affidavit DOJ Should Submit

As you may know, DOJ is ordered by Magistrate Judge Bruce Reinhart to submit a “suggested” redacted version of the warrant affidavit for the Mar-a-Lago search executed on August 8, 2022.

The federal magistrate judge who authorized the warrant to search Donald Trump’s Mar-a-Lago estate emphasized Monday that he “carefully reviewed” the FBI’s sworn evidence before signing off and considers the facts contained in an accompanying affidavit to be “reliable.”

Magistrate Judge Bruce Reinhart offered his assessment in a 13-page order memorializing his decision to consider whether to unseal portions of the affidavit, which describe the evidence the bureau relied on to justify the search of the former president’s home.

“I was — and am — satisfied that the facts sworn by the affiant are reliable,” Reinhart said in the order.

Reinhart ruled last week that he would consider unsealing portions of the affidavit after conferring with the Justice Department and determining whether proposed redactions would be sufficient to protect the ongoing criminal investigation connected to the search. But in his order, Reinhart emphasized that he may ultimately agree with prosecutors that any redactions would be so extensive that they would render the document useless.

The last sentence of that quote is the key. Unless DOJ is going to capitulate to the clicks and reads voyeurism of the overly exuberant political press, nothing whatsoever should be released unless and until charges are filed against some defendant, whether it be Trump or otherwise. Why? Because that it how it is done, and properly so.

Reinhart has received abuse and threats. Is his willingness to even entertain a “redacted version” sound under such threat? His decision will yield the answer to that question.

In the meantime, I have a proposed example of what DOJ should submit to Reinhart. Yes, this example is from CAND, not SDFL, but it is exactly what ought be handed over to Reinhart. And if Reinhart grants any “redacted version”, DOJ should appeal immediately and fully. Leave the affidavit sealed. The voyeuristic public, and press, thinks they have an interest because Trump. But they really do not. Do it the right and normal way.

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