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Did the Comey Dismissal Render Kash Patel’s Grand Conspiracy “Just Someone Else’s Fantasy”?

November 26, 2025/29 Comments/in 2016 Presidential Election, Jim Comey prosecution, Weaponized DOJ /by emptywheel

There’s something missing from all the analysis (and this, from Politico, is quite good) of what might happen in the wake of Judge Cameron Currie’s dismissal of at least the Jim Comey indictment, and possibly even the Letitia James one: the way the dismissal might help or hurt Trump’s plans to charge a Grand Conspiracy in Florida.

[I regret to inform all of you, especially Savage Librarian, that in thinking about this during a bout of insomnia on Sunday I set all my thinking about the Grand Conspiracy to the tune of Styx’ The Grand Illusion.]

After all, if the ultimate goal was always to charge Jim Comey as part of some 20-person conspiracy indictment claiming a bunch of people arranged to have Donald Trump investigated as a ploy to undercut his first term and damage his 2024 election chances (yeah, seriously, that is the theory!), then the statute of limitations expiration was always a mere speed bump.

And in the same way that the dismissal without prejudice leaves unresolved the larger issue of illegal weaponization of DOJ, it also leaves a number of things the Loaner AUSAs might have wanted resolved unresolved.

Understand, two things that had no business being in the Comey indictment are absolutely critical to the Grand Conspiracy theory.

The Grand Conspiracy would start at least by August 9, 2016, when Peter Strzok responded to Lisa Page’s question, “He’s not ever going to become president, right? Right?!” by saying, “No. No he’s not. We’ll stop it.”

From there, Kash Patel’s conspiracy theory about the “Clinton Plan” CIOL would take over.

The Grand Conspiracy conspiracy theory is that the “Clinton Plan” was real, and that it should have given the FBI notice that Hillary had a plan to frame Donald Trump. [I should emphasize, not only don’t I endorse this theory, much of it is false and even more of it is batshit insane, but it nevertheless is being pursued by a Senate confirmed US Attorney in SDFL, Jason Reding Quiñones.] But, the Grand Conspiracy conspiracy theory goes, when Peter Strzok got notice of the Clinton Plan on September 7, he made sure it never got shared with the people beginning to investigate why George Papadopoulos knew of Russia’s plan to help Trump in advance because, the Grand Conspiracy conspiracy goes, it would have led him to open an investigation into Hillary rather than Trump.

Again, not true, insane, but nevertheless what has everyone from the Deputy Attorney General and FBI Director on down to the people unlawfully accessing raw data collected years ago aroused.

Fast forward to 2020. According to the Grand Conspiracy conspiracy theory, when Jim Comey told Lindsey Graham the “Clinton Plan” — as misleadingly described in a John Ratcliffe letter no doubt drafted with Kash’s help — didn’t ring a bell for him, he was lying to cover up how the FBI ignored warning signs about leads from Hillary.

Fast forward even further to 2025. When Kash found a burn bag of materials that had not been destroyed, including the “Clinton Plan” CIOL that might have been brought to the FBI Director’s Office with a bunch of other Durham investigation materials, he and Jack Eckenrode instead assumed that Comey partisans were trying to protect Comey and Strzok’s devious plot to ignore the CIOL back in 2016.

You need the “Clinton Plan” CIOL for the Grand Conspiracy conspiracy theory because that’s what makes their wildly misleading claims about the treatment of the Steele dossier in the 2017 Intelligence Community Assessment damning. The Steele dossier should never have been used at all, the Grand Conspiracy conspiracy theory says, because the FBI had notice that Clinton wanted to frame Trump, but instead Comey, with Brennan’s involvement (the Grand Conspiracy conspiracy theory claims), demanded its inclusion and based (the Grand Conspiracy conspiracy theory claims) the judgement that Russia wanted Trump to win on it, and when Brennan lied about all that in 2023 (the Grand Conspiracy conspiracy theory claims), he was trying to cover up this devious plot.

You also need Comey’s decision to release the memo he wrote up memorializing Trump’s corrupt attempt to shut down the Mike Flynn investigation and with it the communications with Dan Richman. You need that, plus Comey’s overt wish that by releasing the memo a Special Counsel might be (and was) appointed, because it ties (the Grand Conspiracy conspiracy theory claims) Strzok’s stated intent to “stop” Trump from becoming President to the investigation that dominated his first term. The Grand Conspiracy conspiracy theory turns the very legal release of a memo demonstrating Trump’s corruption into the crime of depriving Donald Trump of his right to fully exploit the presidency the Russian government gave him.

Now consider how charging Jim Comey with lying and obstructing fucked the Grand Conspiracy conspiracy plans.

First, the “Clinton Plan” CIOL.

EDVA successfully prevented Comey from explaining the problem with the “Clinton Plan” CIOL before attempting to charge him for lying about it. In his first discovery letter, Pat Fitzgerald noted that he had offered to meet with prosecutors on September 17.

In that regard, on September 17, 2025, I wrote the DOJ to ask for a meeting to discuss why the case should not be brought but never received a substantive response, much less a meeting.

And his motion to dismiss because Lindsey the Insurance Lawyer failed to actually get an indictment revealed that EDVA even refused to engage with the offer to toll the statute of limitations.

In fact, Mr. Comey’s counsel requested a meeting with the U.S. Attorney’s Office the week before the indictment was obtained and offered to toll the statute of limitations to allow for that meeting. A prosecutor in the Office told Mr. Comey’s counsel that the Office had been directed not to engage with defense counsel.

Prosecutors at EDVA — supposedly the good guys who got fired — didn’t want any truths Fitzgerald might share to fuck up their larger Grand Conspiracy conspiracy.

In one of his two replies for release of grand jury materials, Comey laid out how stupid all this is.

On September 30, 2020, Mr. Comey testified before the Senate Judiciary Committee about the Crossfire Hurricane counterintelligence investigation into alleged links between President Trump’s 2016 campaign and the Russian government. See Oversight of the Crossfire Hurricane Investigation: Day 3, Hearing Before the U.S. Senate Committee on the Judiciary, 116th Cong. (Sept. 30, 2020), http://bit.ly/4o2ekHb. The night before, he was sent a copy of the Ratcliffe Letter, described above, which purported to summarize the September 7, 2016 CIOL in one sentence. Mr. Comey was not provided an opportunity to review the September 7, 2016 CIOL at issue prior to his testimony.

[snip]

There is no evidence whatsoever that Mr. Comey received the CIOL at issue, much less that he reviewed it. The materials in discovery make clear that every day, numerous CIOLs come to the FBI addressed to the Director—from a variety of federal agencies in a variety of formats—and are routed to employees other than the Director. Because the Midyear Exam investigation had been closed for more than two months, there is no reason to believe that any CIOL related to Ms. Clinton would have been sent to Mr. Comey (and the government has produced no proof that it was). There is no electronic trail showing that Mr. Comey received the CIOL at issue. There is no paper trail showing that he received it. And there is no witness who says that Mr. Comey either received it or discussed it with him. Full stop.

This total lack of evidence is extremely troubling in light of credible press reporting that not only does a declination memorandum exist in this case,11 but it made clear that with respect to the CIOL in particular, a prior investigation found that Mr. Comey’s statement could not support a false-statement charge because there was insufficient evidence Mr. Comey had ever seen the CIOL.12 Ms. Halligan was also reported to have been advised by career prosecutors in that declination memorandum that “seeking the charges would violate DOJ policy, raise serious ethics issues, and risk being rejected by the grand jury.” Id.

In a footnote, he noted that this is all based on Russian disinformation.

10 Indeed, it appears this information was created by Russian intelligence, and did not accurately reflect particular emails. See Charlie Savage & Adam Goldman, ‘Clinton Plan’ Emails Were Likely Made by Russian Spies, Declassified Report Shows, N.Y. Times (July 31, 2025), https://perma.cc/F8AF-TLAF.

Worse still, a grand jury determined there was not probable cause that Comey lied about the “Clinton Plan” CIOL (though the Loaner AUSAs were trying to backdoor that as a crime in the obstruction charge).

Todd Blanche whisked the criminal investigation into whether Brennan lied in 2023 about his enthusiasm for the Steele dossier away to SDFL before a prosecutor wrote up a declination memo. Having arrived in Florida, US Attorney Jason Reding Quiñones sent out a bunch of subpoenas that everyone recognizes to be entirely performative (because they ask for highly classified things none of the subpoena recipients would have in their private possession).

But Blanche didn’t whisk this “Clinton Plan” CIOL off to Florida (which might have happened had Trump not demanded Pam Bondi intervene) before Lindsey the Insurance Lawyer did real damage to it.

And by bringing in Loaner AUSAs who actually care about their bar licenses, Blanche also did grave damage to their plan to use the Comey memos in the Grand Conspiracy conspiracy. The Loaner AUSAs attempted (or rather, fronted for James Hayes’ attempt) to use this investigation to get a filter team approved to turn the clearly privileged materials Miles Starr and Jack Eckenrode could have read because Kash Patel’s FBI turned off the filters applied under Bill Barr into crime-fraud excepted communications, at least ostensibly because they reflected a conspiracy to leak classified materials but in reality to serve their larger Grand Conspiracy conspiracy.

But instead of getting their filter protocol, the EDVA effort resulted in an order from William Fitzpatrick prohibiting the government from reviewing those privileged materials.

ORDERED that the Government, including any of its agents or employees, shall not review any of the materials seized pursuant to the four 2019 and 2020 search warrants at issue until further order of the Court;

And then Fitzpatrick issued an opinion effectively holding that DOJ violated Comey’s attorney-client privilege in 2020 by not permitting him to assert privilege.

However, the government never engaged Mr. Comey in this process even though it knew that Mr. Richman represented Mr. Comey as his attorney as of May 9, 2017, and three of the four Richman Warrants authorized the government to search Mr. Richman’s devices through May 30, 2017, 21 days after an attorney-client relationship had been formed. ECF Nos. 38 at 2 and 138-11 at 33 (Aug. 2019 Office of the Inspector General Report) (noting that Mr. Comey informed the Office of Inspector General that “the day after his removal, or ‘very shortly thereafter,’ he retained attorneys Patrick Fitzgerald, David Kelley, and Daniel Richman.”).

[snip]

At the time the Richman Warrants were executed, the government was aware not only that Mr. Richman represented Mr. Comey, but also that he maintained ongoing attorney-client relationships with other individuals, as the FBI materials regarding his resignation from Special Government Employee status noted his intention to represent a defendant in a federal criminal prosecution. Id. As a result, when the government obtained the first Richman Warrant in 2019, it was clearly foreseeable that Mr. Richman’s devices contained potentially privileged communications with numerous third parties, including Mr. Comey. Nevertheless, in 2019 and 2020, the government made a conscious decision to exclude Mr. Comey from the filter process, even though Mr. Comey, as the client, is the privilege holder, not Mr. Richman. The government’s claim at the November 5, 2025 hearing that Mr. Richman, at the time himself the subject of a criminal investigation and represented by separate counsel, was in a position to effectively assert Mr. Comey’s privilege is entirely unreasonable.

Fitzpatrick noted that had prosecutors obtained a new warrant to investigate Comey’s alleged leaks, it would be narrowly scoped. (He doesn’t say this, but it is the case that a new warrant would have prohibited any searches after February 7, 2017, the day Richman left the FBI, and therefore prohibited the review of the Comey memo exchanges even on the Richman side.)

If a new warrant had been sought by the government and issued by the Court, the Fourth Amendment would have required it to be narrowly tailored, authorizing access only to materials within a limited time frame and relevant to the new offenses under investigation. See Williams, 592 F.3d at 519. In addition, any new warrant would have imposed strict procedural safeguards to ensure privileged information was not reviewed by the prosecution team. As a result, the parameters of the 2025 search would inevitably have had a different and much narrower scope than the Richman Warrants. Faced with this prospect, the government chose to unilaterally search materials that were (1) seized five years earlier; (2) seized in a separate and since closed investigation; (3) that were never reviewed to determine whether the seized information was responsive to the original warrants; (4) that were likely improperly held by the government for a prolonged period of time; (5) that included potentially privileged communications; (6) did so without ever engaging the privilege holders; and (7) did so without seeking any new judicial authority.

And he described that DOJ had permitted Miles Starr to remain on the investigative team even after having been tainted by privileged communications.

Agent-3, rather than remove himself from the investigative team until the taint issue was resolved, proceeded into the grand jury undeterred and testified in support of the pending indictment. ECF 179. In fact, Agent-3 was the only witness to testify before the grand jury in support of the pending indictment. Id. The government’s decision to allow an agent who was exposed to potentially privileged information to testify before a grand jury is highly irregular and a radical departure from past DOJ practice.

The Fitzpatrick opinion was absolutely devastating for the Grand Conspiracy conspiracy, because it rendered Comey’s side of the Comey memo exchanges unlawfully seized.

And then Donald Trump DOJ responded the way Trump always does, by claiming bias. The Loaner AUSAs made a specious claim that Fitzpatrick’s comments about Lindsey the Insurance Lawyer’s misstatements to the jury reflected bias.

Federal courts have an affirmative obligation to ensure that judicial findings accurately reflect the evidence. Canon 2(A) of the Code of Conduct for United States Judges requires every judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and to avoid orders that “misstate or distort the record.” Canon 3(A)(4) requires courts to ensure that factual determinations are based on the actual record, not assumptions or misrepresentations. Measured against these obligations and the rule of law, the magistrate’s reading of the transcript cannot stand.

And, that very same day, Lindsey the Insurance Lawyer lied to the NYPost in a bid to claim that Michael Nachmanoff himself is biased.

Interim US Attorney Lindsey Halligan suggested Wednesday that the Biden-appointed judge overseeing the criminal case against former FBI Director James Comey violated judicial conduct rules by asking if she was a “puppet” of President Trump.

District Judge Michael Nachmanoff asked Comey’s defense lawyer if he thought Halligan, the prosecutor who brought the indictment against the former FBI boss, was acting as a “puppet” or “stalking horse” of the commander in chief, during a hearing in an Alexandria, Va., courtroom.

“Personal attacks — like Judge Nachmanoff referring to me as a ‘puppet’ — don’t change the facts or the law,” Halligan exclusively told The Post.

By November 19, the day of these twin bullshit claims of judicial misconduct, the Comey prosecution in EDVA had done grave damage to the Grand Conspiracy conspiracy. But the plan was to discredit everything the judges did.

Except for Cameron Currie. They forgot to include Judge Currie, and her order dismissing the indictment without prejudice — making the indictment and everything that happened after that a legal nullity — left all of this wildly unresolved.

DOJ is on notice that they broke the law and that their Grand Conspiracy conspiracy theories are bullshit. But that notice has become a legal nullity, with no way for them to rebut it in EDVA.

I can tell you what the plan was. It was (as Charlie Savage recently laid out) to whisk this all away to Aileen Cannnon’s courthouse to make the crimes FBI committed go away.

I have no fucking clue what the plan is now, because I have no idea what the legal import is of these legal statements that have been rendered a legal nullity by the Currie order.

I do know, however, that when imagining what might come next, you have to consider that SDFL investigation, which may be why Comey’s statement predicted that, “I know that Donald Trump will probably come after me again.”

Update: In somewhat related news, the 11th Circuit has upheld the judgment and sanctions against Trump and Alina Habba for their frivolous lawsuit very much paralleling the Grand Conspiracy theory.

Meaning, Jim Comey has beaten Trump in court twice in a holiday-shortened week.

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MAGAts Outraged Comey Indictment Dismissed on Same “Technicality” Trump’s Was!

November 25, 2025/29 Comments/in 2016 Presidential Election, emptywheel, Jim Comey prosecution, Letitia James Investigation, Weaponized DOJ /by emptywheel

In the wake of Judge Cameron Currie’s order dismissing the Jim Comey and Letitia James’ indictments, right wing Trump supporters have contorted themselves into knots trying to claim that Comey and James got special treatment, rather than simply the application of clear precedent to their case.

A technicality!!!!!!

The funniest wail from these MAGAts is their claim that Comey and James only got off on a “technicality,” so we can go ahead and consider them guilty.

In point of fact, Comey pointed out in a filing last week that the Loaner AUSAs have yet to point to any instance that fits the terms of their claimed alleged lie.

Here, the government has repeatedly failed to provide a coherent factual basis for its theory that Mr. Comey authorized Mr. Richman to be an “anonymous source” in news reports regarding the Midyear Exam investigation while Mr. Richman was “at the FBI.” Of the communications following Mr. Comey’s October 28, 2016 letter that the government cites in both briefs, none reflect Mr. Comey authorizing Mr. Richman to be an anonymous source. For instance, the communications show Mr. Richman discussed materials that were already public, like Mr. Comey’s letter to Congress. See, e.g., Opp. at 3 (“Wittes and I are spending a lot of time saying your letter means exactly, and only what it says.” (emphasis added)); id. at 3-4 (quoting the defendant as telling Mr. Richman that Richman’s contributing to a New York Times Opinion piece “would [be] shouting into the wind,” and “that they would ‘figure it out’” without Richman’s contributions). And even where the government alleges that Mr. Comey encouraged Mr. Richman to speak to the press in late October and early November 2016, there is no indication that Mr. Richman did so anonymously; to the contrary, one of the exhibits the government cites references Mr. Richman’s televised interview with Anderson Cooper. Opp. at 4 (citing ECF No. 138-6, 138- 7). The remaining communications cited by the government in its Opposition to Defendant’s Motion to Dismiss Indictment Based on Vindictive and Selective Prosecution suffer from numerous defects, but most critically, all occurred after February 7, 2017, when Mr. Richman left the FBI. This alone makes the government’s theory that Mr. Richman was “at the FBI” when these communications occurred incomprehensible.

And exhibits another Loaner AUSA submitted in the government’s response to James’ vindictive prosecution claim show that Lindsey the Insurance Lawyer was gaslighting Anna Bower when she was stalking her.

More astonishing, though, is that these indictments were dismissed on the very same “technicality” — that the prosecutor was unlawfully appointed — that Judge Aileen Cannon invoked to dismiss Trump’s far better substantiated stolen document case (though Cannon was a newbie judge departing from decades of precedent, while Currie is a senior judge simply following existing precedent).

Indeed, Judge Currie even cites Cannon’s opinion dismissing Trump’s indictment for the principle that everything had to be unwound.

In such a case, “the proper remedy is invalidation of the ultra vires action[s]” taken by the actor. United States v. Trump, 740 F. Supp. 3d 1245, 1302 (S.D. Fla. 2024). “Invalidation ‘follows directly from the government actor’s lack of authority to take the challenged action in the first place. That is, winning the merits of the constitutional challenge is enough.’” Id. (quoting Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 241 (5th Cir. 2022) (Jones, J., concurring)).

To make things more awkward, in the hearing on this, Judge Currie asked Pam Bondi’s Counselor, Henry Whitaker, about that precedent and he partly disavowed it, and in doing so, noted that Bondi had other means she could have put Lindsey the Insurance Lawyer in place to indict Comey and James, means she did not take.

THE COURT: Mr. Whitaker, let me ask you one last question. Do you believe that U.S. v. Trump, decided by Judge Cannon, in, I believe, 2021, was wrongly decided?

MR. WHITAKER: Well, I think it’s certainly not controlling here, Your Honor, because in United States v. Trump, Judge Cannon held that various statutes that existed, some of which I’ve cited here today, did not authorize the appointment of a special counsel. But here, in a very important distinction between this case and Trump, is that we have available to us a number of statutes that the United States did not have available in making those arguments. For example, you know, you couldn’t have appointed Jack Smith as an AUSA under 542. I mean, we could have — we certainly could have done that with Ms. Halligan. You couldn’t have appointed Jack Smith as an assistant to a United States attorney under 543. We certainly could have done that with regard to Ms. Halligan.

But, I mean, look, to the extent that — and I do think that mostly what was driving Judge Cannon’s decision in that case was sort of the unique and broad authority that the special counsel possessed sort of free of supervision, which, of course, is an element that we do not have here. But I will say this: Like, look, to the extent you can read Judge Cannon’s decision as suggesting that the Department of Justice does not have authority under, for example, 28 U.S.C. Section 510 to appoint Main Justice attorneys, which would basically knock out most of the Department of Justice as it existed for the past, like, 50 years, yes, we certainly do disagree with that, and we agree that the attorney general has full authority to make appointments under statutes like 28 U.S.C. Section 510 and 509, and that source of authority would fully support Ms. Halligan being an authorized attorney to the government even though there may have been a paperwork error, a citation error in her appointment order.

A Clinton appointee swooping in to steal the case

Which brings us to the second complaint: that it was somehow improper for Currie, a Clinton appointed senior judge from South Carolina, to swoop into EDVA and end the case.

But that is precisely the process used in the three other districts where judges have ruled similar interim appointments unlawful, with a fourth (also involving Tish James) still in process.

When Julien Giraud, father and son, and Cesar Humberto Pino challenged Alina Habba the Parking Garage Lawyer’s involvement in their cases, the Chief Judge from the Third Circuit appointed an out of District judge to preside, Matthew Brann, a Republican appointed by Obama.

Shortly thereafter, the Honorable Michael A. Chagares, Chief Judge of the United States Court of Appeals for the Third Circuit, designated me for service in the District of New Jersey pursuant to 28 U.S.C. § 292(b) and reassigned this matter “and all related cases” to me.36

When a bunch of defendants in Nevada challenged Sigal Chattah the election denier lawyer’s involvement in their cases, the Chief Judge from the Ninth Circuit appointed an out of District judge to preside, David Campbell, a George W Bush appointee.

The Nevada District Court Judges recused from hearing these motions to dismiss, presumably because the motions implicate their own power to appoint an Acting U.S. Attorney. See 28 U.S.C. § 546(d). Exercising her authority under 28 U.S.C. § 292(b), Ninth Circuit Chief Judge Mary Murguia designated the undersigned judge to hear and decide these motions. Doc. 21.

When some Los Angeles defendants challenged liar for ICE goons Bill Essayli’s involvement in their cases, the Chief Judge from the Ninth Circuit appointed a different out of District judge, Michael Seabright, another George W Bush appointee, to preside over their challenges.

ORDER (U.S.C. § 292(b)) by Chief Circuit Judge Mary H. Murguia as to Defendant Jaime Hector Ramirez: Pursuant to 28 U.S.C. § 292(b), I hereby designate the Honorable Michael Seabright, United States Senior District Judge for the District of Hawaii, to temporarily perform the duties of United States District Judge on an as-needed basis for the Central District of California beginning on 9/8/2025, and ending on 12/31/2025, and for such additional time required in advance to prepare or thereafter to complete unfinished business.

And when Letitia James challenged subpoenas issued by John Sarcone after he falsely claimed NDNY judges had named him as US Attorney, the Chief Judge from the Second Circuit appointed an out of District judge to preside over that challenge, Lorna Schofield, another Obama appointee.

Of note, all these challenges to Pam Bondi’s playacting US Attorneys had started before Bondi installed Lindsey the Insurance Lawyer on September 22, and Judge Brann had already ruled Alina Habba’s appointment to be unlawful.

Bondi was on notice that what she was doing with Lindsey the Insurance Lawyer was going to be challenged and had been successfully challenged. And she didn’t even attempt any of the gimmicks she is using elsewhere to keep Trump hacks in place, those means cited by her own Counselor in court — in part because she couldn’t. She had already used one of those tricks, installing Maggie Cleary as First AUSA, when Trump insisted it had to be Lindsey the Insurance Lawyer.

These cases might have been dismissed on other grounds. But the unlawful appointment dismissals are entirely of Bondi’s doing.

Stop blaming judges appointed by whichever President when Bondi is 100% to blame.

The Blue Slip gaslight special

Finally, there are even right wing dumbasses claiming that this is about Blue Slips, the Senate tradition that US Attorneys and Judges must have the support of both Senators before being confirmed.

To be fair, Todd Blanche did go on Fox News and falsely claim that is what this is about.

The way you know Blanche is lying is because Trump told us himself, when he ordered Bondi to install Halligan.

“[W]e almost put in a Democrat [sic] supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job.”

What he’s talking about is that Trump himself nominated Siebert with the support of both Mark Warner and Tim Kaine.

Siebert was someone everyone agreed on — Trump installed him, EDVA’s judges reinstalled him, Trump nominated him — until Siebert concluded, apparently with Blanche’s concurrence, that there was not probable cause to indict Jim Comey.

All this whining is nothing other than cope.

If you complain that Democrats aren’t supporting qualified nominees, you should be outraged that Trump pulled Siebert.

If you complain that unconflicted judges decide these issues, you’ve got one.

If you really had a problem with appointments clause dismissals, you should be demanding that Trump stand trial for stealing nuclear documents and stashing them in a bathroom.

But what you shouldn’t do is blame anyone other than the person responsible, Attorney General Pam Bondi.

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Lindsey Halligan’s Grand Jury Violation, with Love to Aileen Cannon

October 20, 2025/34 Comments/in Weaponized DOJ /by emptywheel

Most of this post lays out Jim Comey’s vindictive and selective prosecution challenge. It is very tidy, providing little we didn’t already know.

Aside from the confirmation that Lindsey Halligan was appointed under 28 USC 546, that’s generally true of Comey’s motion to dismiss because of Halligan’s unlawful appointment, as well.

But it feels different, because it’s a bid to win before the far right Supreme Court.

That starts with the memo that Sammy Alito wrote in 1986 — a memo conservative lawyer Ed Whelan has highlighted in his commentary against such an appointment. Back then, Sammy interpreted 28 USC 546 as prohibiting making serial Interim US Attorney Appointments, as Trump did in EDVA to install Lindsey the Insurance Lawyer.

Just three days after Congress enacted the 1986 law, the Office of Legal Counsel (OLC) within the DOJ issued a memorandum, authored by then-Deputy Assistant Attorney General Samuel Alito, interpreting the provision in precisely the same manner as Mr. Comey here. See Definition of Vacancy for the Purpose of Interim Appointment of United States Attorneys pursuant to 28 U.S.C. 546, as amended, Office of Legal Counsel (Nov. 13, 1986), https://perma.cc/SD5Q7CPH. Specifically, OLC concluded that while a “vacancy exists when the 120-day period expires under the amended section 546 and the President has either not made an appointment or the appointment has not been confirmed,” “it does not follow that the Attorney General may make another appointment pursuant to 28 U.S.C. 546(a) after the expiration of the 120-day period.” Id. at 3 (emphasis added)

There’s the dickish comment from Bill Essayli, whose own appointment is being challenged in Los Angeles (before a Hawaiian judge).

Nor is the government’s gambit limited to this case. In several cases throughout the country, the government has sought to end run Congress’s framework in Section 541 and 546 before being rebuffed by courts. See Giraud, 2025 WL 2416737, at *1, *8 (detailing the Executive Branch’s perpetuation of “Alina Habba’s appointment to act as the United States Attorney for the District of New Jersey through a novel series of legal and personnel moves” and concluding that she “was not lawfully acting as the United States Attorney in any capacity” 120 days after the Attorney General first invoked her power under Section 546(a)); United States v. Garcia, et al, No. 25-cr-227, 2025 WL 2784640, at *3 (D. Nev. Sept. 30, 2025) (“The Nevada judges did not have an opportunity to exercise [Section 546(d)] power because, on the 119th day of Ms. Chattah’s term, the government purported to switch her appointment to the [Federal Vacancies Reform Act] and its longer term of service.”). In fact, when one interim U.S. Attorney was asked whether his term was “up at the end of this month” given subsection (c)(2)’s 120-day limit, he responded that “we’ve got some tricks up our sleeves.”15 This Court should reject the government’s machinations here.

15 See The Glenn Beck Program: Bill Essayli, at 44:14 (Jul. 22, 2025), http://bit.ly/4nc6yck.

But the real high point comes in the challenge under the Appointments Clause, where a team including Michael Dreeben cites liberally from Trump v. US and US v. Trump to argue that one of Trump’s defense attorneys from his stolen documents case was unlawfully appointed under the very same logic Aileen Cannon used to throw out that case.

B. Ms. Halligan’s Appointment Also Violates The Appointments Clause

As explained above, the Appointments Clause allows Congress to “by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., Art. II, § 2, cl. 2. The requirement that Congress participate in the appointment of inferior officers—either through Senate confirmation or through specifying an appointment procedure “by Law”—reflects the Framers’ concerns about the Executive Branch’s “manipulation of official appointments.” Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (citations omitted).

Here, Congress vested the appointment of interim U.S. Attorneys “by Law” in a “Head of Department[]”—the Attorney General—as well as in “the Courts of Law”—district courts. In so doing, Congress established a finely tuned statutory scheme for such appointments. See supra at 8-9. Because the Attorney General appointed Ms. Halligan in violation of that scheme, Ms. Halligan’s appointment as an inferior officer is not authorized “by Law.” And the “head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto.” United States v. Perkins, 116 U.S. 483, 485 (1886). The Attorney General’s appointment of Ms. Halligan thus violates not only Section 546, but also the Appointments Clause. See Trump v. United States, 603 U.S. 593, 644-45 (2024) (Thomas, J., concurring) (citations omitted); United States v. Trump, 740 F. Supp. 3d 1245, 1263 (S.D. Fla. 2024).

[snip]

In light of these principles, the Supreme Court has invalidated judgments issued or reviewed by an improperly appointed adjudicator. In Ryder v. United States, 515 U.S. 177 (1995), for instance, the Supreme Court “reversed” the court-martial conviction of a defendant after he successfully challenged the appointment of the intermediate appellate judges who reviewed his case. Id. at 188. Likewise, in Lucia v. SEC, 585 U.S. 237 (2018), the Court set aside an agency adjudication “tainted with an appointments violation,” making clear that a decision of an improperly appointed official cannot stand. Id. at 251.

Similarly, in United States v. Trump, 740 F. Supp. 3d 1245 (S.D. Fla. 2024), the court applied these principles when dismissing an indictment on Appointments Clause grounds because of a defect in the appointment of the prosecutor who secured the charges. The court concluded that “[b]ecause Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law,” there was “no way forward aside from dismissal of the Superseding Indictment.” Id. at 1302. Indeed, the government there did not even “propose an alternative course.” Id. The court reasoned that “[i]nvalidation follows directly from the government actor’s lack of authority to take the challenged action in the first place.” Id. at 1302-03.

That is, a team with a lawyer from Jack Smith’s team is citing Aileen Cannon’s disastrous opinion in Trump’s stolen documents case for the principle that for a lawyer to do what Lindsey the Insurance Lawyer did, she needs to be Senate approved.

Lindsey the Insurance Lawyer should know that (as should Deputy Attorney General Todd Blanche). After all, she was part of that “successful” defense team.

This is not to endorse this view. It is to say that if the sentiment behind Aileen Cannon’s dismissal of Trump’s stolen documents prosecution holds — if Clarence Thomas really wants to go there — than Halligan’s appointment, and all the work she did, must be thrown out, just as Jack Smith’s was.

The other vindictive and selective prosecution argument — that Donald Trump cannot simply appoint a US Attorney to take out his enemies is right on the facts but inapt on the legal precedents. But this one is designed to corner the right wingers on the Supreme Court.

And if that happens, this motion to dismiss goes further than the other — it puts Lindsey the Insurance Lawyer in an awkward spot. Because if she was not authorized by law to go before the grand jury, she violated grand jury secrecy rules.

Here, Ms. Halligan’s unlawful appointment tainted the structural integrity of the grand jury process. Absent Ms. Halligan’s unlawful title, she would not have been able to enter the grand jury room, let alone present and sign an indictment. Indeed, the Federal Rules of Criminal Procedure allow only “attorneys for the government” to be “present while the grand jury is in session,” Fed. R. Crim. P. 6(d)(1), and define such attorneys to include only “attorney[s] authorized by law to conduct” grand jury proceedings, Fed. R. Crim. P. 1(b)(1)(D) (emphasis added). Those rules implement the longstanding principle “that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings”—a principle that “is ‘as important for the protection of the innocent as for the pursuit of the guilty.’” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (citations omitted). By limiting participation to government attorneys “authorized by law,” Rules 1 and 6 maintain the secrecy of the grand jury proceeding and reinforce that an unlawfully appointed attorney’s presentation to the grand jury underminesthe structure of that proceeding. The fundamental error here thus allows a presumption that Mr. Comey was prejudiced, “and any inquiry into harmless error would [require] unguided speculation.” Bank of Nova Scotia, 487 U.S. at 257.

Which is weird, because she was trying to lecture Anna Bower about relying on NYT reporting from witnesses … who are allowed to share their testimony before the grand jury.

This is the easier way to throw out this prosecution. It’s the same interpretation of the law that already got Alina Habba and Sigal Chattah disqualified from cases that won’t, however, sink the entire case.

But if that does happen, Lindsey may be in a bit more trouble for even pretending to be a government prosecutor.

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Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days

January 21, 2025/18 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

Aileen Cannon issued her ruling withholding any sharing of Jack Smith’s Volume Two — which she extended to thirty days after all appellate proceedings.

2. Attorney General Garland or his successor(s), the Department of Justice, its officers, agents, officials, and employees, and all persons acting in active concert or participation with such individuals, are enjoined from (a) releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice, or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof

3. This Order remains in effect pending further Court order, limited as follows. No later than thirty days after full conclusion of all appellate proceedings in this action and/or any continued proceedings in this Court, whichever comes later, the parties shall submit a joint status report advising of their position on this Order, consistent with any remaining Rule 6(e) challenges or other claims or rights concerning Volume II, as permitted by law. Any disagreements between the parties can be denoted separately.

She claims the report — which would only be released in redacted form — includes non-public information (and also revealed that Trump was claiming attorney-client privilege over some of the material).

Volume II includes detailed and voluminous discovery information protected by the Rule 16(d)(1) Protective Order entered in this case [ECF No. 27]. Much of this information has not been made public in Court filings. It includes myriad references to bates-stamped information provided by the Special Counsel in discovery and subject to the protective order, including interview transcripts, search warrant materials, business records, toll records, video footage, various other records obtained pursuant to grand jury subpoena, information as to which President-Elect Trump has asserted the attorney-client privilege in motions in this proceeding [ECF No. 571 (sealed); ECF Nos. 641, 656], potential Rule 404(b) evidence, and other non-public information.

Along the way, she notes that no one from Congress has asked for the report, but that the Democratic members of HJC called for its public release.

12. With respect to the Department’s assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira.10 Finally, although the Department refers generally to “legislative interest” concerning special counsels as a basis to deny Defendants’ Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now.

Note that she ignores Kash Patel’s pending confirmation proceedings.

Cannon also makes a patently false claim — that DOJ has never released Special Counsel information prior to the conclusion of criminal proceedings.

Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant—and absent a litigation-specific reason as appropriate in the case itself— sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now.

The Mueller Report did that: It included (but redacted) information on both the Prigozhin troll case and the Roger Stone one.

Ah well. I did say that Jamie Raskin would have been better off attempting to intervene personally.

Cannon, having released the order after folks at SDFL quit, now makes much of the fact that no one from SDFL is noticed on this matter.

Update: As a reminder, I posted on some of the stuff that would appear in the report here. It sounds like the report itself has a lot more description of surveillance footage.

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On the Misguided Tactical Conversations about Volume Two of the Jack Smith Report

January 17, 2025/23 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

Like everyone else, I badly want to see Volume Two of the Jack Smith report. If it were a fulsome report, it might give us explanations for the kinds of documents Trump hid in his bathroom, it might explain why there was a grant of clemency to Roger Stone with some tie to a Secret document about Emmanuel Macron in Donald Trump’s desk drawer, and it might reveal more about Kash Patel’s efforts to help Trump lie about the documents. It might even describe what investigators might have learned if Walt Nauta had cooperated.

Given the ways that Jack Smith pulled his punches in Volume One, however, I’m far less optimistic the report is as expansive as it could have been if it had adopted Robert Hur’s approach to declination decisions. It’s more likely the report would offer explanations for why Smith charged the case in SDFL and why he didn’t charge 18 USC 2071 — both of which would be useful for those who don’t understand those issues, but still wildly unfulfilling.

If Volume One is any indication, Smith did not use his report to get out previously unknown details.

Plus, I’m not sure what good it would do anyway. The most interesting response to Volume One, in my opinion, was seeing a lot of the same pundits who had complained that Jack Smith hadn’t released more information publicly making it clear they didn’t realize that most of the factual discussion was cited directly to the immunity brief Smith fought to release before the election, in October. Thanks for proving my point that you weren’t paying attention to the stuff that was getting released! Not to mention the Garland whingers who, in their misreading of the Jack Smith report, confessed they had never been reading the public documentation about how the investigation proceeded and weren’t going to before using it to attack Garland. You all failed to make something of this investigation when it could have mattered. It’s not clear how you’ll do better with Volume Two.

I think the House Judiciary Committee letter calling on Merrick Garland to release the report — something I want too! — by dismissing the case against Nauta and Carlos De Oliveira is the same kind of misguided intervention. Particularly given DOJ’s emphasis in court filings that Jamie Raskin has a constitutional entitlement to review the document in his function as Ranking Member of HJC, just like Dick Durbin has a heightened interest given his duty to advise and consent to the Kash Patel confirmation.

I’m no genius on criminal procedure, but I simply don’t understand how this would work. DOJ can’t just dismiss the case. They have to have to dismiss it somewhere in court, just like Bill Barr tried with Mike Flynn. I’m not even sure where you would do that, because there’s not currently a pending case. There’s an appeal of the complete dismissal of the case in the 11th Circuit, where you could dismiss the appeal. And there’s Aileen Cannon’s courtroom, where the legal status of the case is that everything that happened after November 18, 2022, after Jack Smith was appointed, is unconstitutional. If Cannon’s ruling holds, then arguably even writing the report was unconstitutional (which is why it was dumb, in my opinion, not to have written a two-part Volume Two, breaking out the stuff (to include the Kash Patel interview) that happened before Smith was appointed. Aileen Cannon is not going to let you dismiss the case, I promise you.

There’s something being missed in this discussion that’s worth pondering. It’s not Merrick Garland who made the decision to withhold Volume Two until Trump destroys the remaining case against Nauta and De Oliveira. It was Jack Smith who recommended that course of action.

Because Volume Two discusses the conduct of Mr. Trump’s alleged co-conspirators in the Classified Documents Case, Waltine Nauta and Carlos De Oliveira, consistent with Department policy, Volume Two should not be publicly released while their case remains pending.

Which Garland adopted.

I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing.

Given what we saw in Volume One, there are multiple possible reasons he may have made that recommendation. Possibly, as he did in Volume One, Smith is just trying to adhere to normal procedure as much as possible, to prove that he and any lawyers who attempt to remain at DOJ after next week never tried to pull a fast one on Trump. Possibly, Smith simply believes the legal posture of the case, in which ceding Aileen Cannon’s view that everything that happened after November 18, 2022 is unconstitutional would concede the report is too, makes releasing it impossible at the moment.

Possibly someone involved with all this believes there’s a different way to get the volume released.

Again, given what we see in Volume One, I assume it’s one of the first reasons: It really is department policy not to harm the trial rights of defendants (Mueller succeeded in releasing his report even though both Roger Stone and Yevgeniy Prigozhin’s trolls still had to stand trial, which led to many squabbles about redactions). For whatever well- or ill-considered or naive opinions, Smith really is trying to reassure everyone that everything is normal.

That said, there are some reasons to believe the report won’t get destroyed right away. One is that several people have already FOIAed it, creating legal problems (that Trump and possibly even Pam Bondi don’t care about) if it disappears. A far stronger one is that to investigate anyone from Jack Smith’s team, you need to preserve Jack Smith’s records.

I can think of several ways this report might still be liberated via other means.

But it’s worth noting that when it comes time to make Nauta’s appeal go away, every single person Trump wants at DOJ has a conflict: aspiring Deputy Attorney General Todd Blanche was Trump’s attorney on this, aspiring Solicitor General John Sauer his appeals attorney. Emil Bove, who will serve in the unconfirmed position of PADAG and will run the department starting Monday until others are confirmed, was also on Trump’s Florida team. And Pam Bondi joined an amicus before the 11th.

When Bondi, at least, was asked about her many conflicts in her confirmation hearing, she gave the standard rote answer: that she would consult with the career ethics officials at DOJ. That amounted to a tacit, non-binding commitment that she (and Bove, who’ll get there before her) won’t eliminate those key career officials. If that were to include Brad Weinsheimer, who supervised all of the Special Counsels Garland approved (and may have influenced the unsatisfying scope of Smith’s final report), that would put him the middle of these decisions.

As noted, even while DOJ seems to be pursuing a least-damage approach with Volume Two, they are establishing the prerogatives of Congress to access this report — and not just the report, but even underlying 302s from the investigation.

The Department has historically made materials available for in camera review by members of Congress as part of the process to accommodate the Executive Branch’s interests in protecting the confidentiality of sensitive information while ensuring that Congress can fulfil its own constitutional oversight functions.2 For example, when a congressional committee sought FBI Form 302 interview reports referenced in the Final Report of Special Counsel Robert Mueller, the Department reached an agreement with the Committee to make those reports available in camera, at the Department, pursuant to specified terms, with redactions to protect privileged and grand jury information. See Supplemental Submission Regarding Accommodation Process ¶¶ 1-2, In re: Application of the Committee on the Judiciary, U.S. House of Representatives, No. 1:19-gj-00048- BAH, ECF No. 37 (D.D.C. October 8, 2019).

2 Congress has recently, on multiple occasions, taken the position that it has a particularized legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels. See., e.g., Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 43, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 4, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 10, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024).

Wouldn’t it be better for Raskin to at least assert his own constitutional prerogative here, rather than a letter that doesn’t address the procedural means via which Garland could dismiss the case? Particularly given that, in the vacuum created by his silence, Trump is making Raskin’s partisanship cause to keep the document sealed?

The government does this despite knowing that these political actors will have every ability and incentive to use such information to undermine President Trump’s transition and his ability to govern our Nation moving forward.2 Nor is there any material doubt the ranking members will do so, given their immediate politicking on Volume I of Smith’s report, including extensive and hyperbolic commentary on the contents of that Volume. See Raskin, Ranking Member Raskin’s Statement on Special Counsel Jack Smith’s Report on President-Elect Donald Trump’s Election Subversion and Incitement of Insurrectionary Violence (Jan. 15, 2025); Durbin, Durbin Statement On Former Special Counsel Jack Smith’s Report On Trump’s Interference In The 2020 Election (Jan 14, 2025).

Thus, the government is not seeking, as it claims, to aid Congress in exercising its “oversight functions.” Doc. 703 at 3. Instead, by delivering Volume II to unashamed partisans, the government strategically aims to ensure the Volume’s public release. Although the government claims that a purported “agree[ment] to specified conditions of confidentiality,” id. at 4, would alleviate these concerns, it would do nothing of the sort. As the government well knows, the Constitution prohibits any enforceable restrictions on the ranking members’ use or disclosure of information in furtherance of their official duties. The ranking members could, for example, stand on the floor of the House or Senate and disclose the entire contents of Volume II, without fear of any legal consequence. U.S. CONST. art. I, § 6, cl. 1 (providing for Speech or Debate Immunity); Hutchinson v. Proxmire, 443 U.S. 111, 130 (1979) (“A speech by [a Senator] in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record.”). Thus, whatever “confidentiality agreement” the government purports to adopt (the terms of which the government has pointedly not provided the Court), it is entirely illusory, because no such agreement is enforceable. Disclosure to the ranking members is functionally equivalent to public disclosure. This, in turn, poses an extraordinary danger to President Trump’s ability and right to prepare for the Presidency free of such unconstitutional attacks by the incumbent administration.

If this report doesn’t come out, it can be made into an anvil to hang over the entire leadership of DOJ. To make it one, though, you need to establish clearly that Congress has equities in this document, too, and any abridgment of those equities will provide opportunity for Congress to intervene with DOJ.

Thus far, Congressional Democrats have chosen a far less effective route.

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Aileen Cannon Interfering with Chuck Grassley and Dick Durbin’s Constitutional Duty

January 13, 2025/84 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

I’m a bit baffled by the status of Aileen Cannon’s Calvinball to keep both volumes of the Jack Smith report buried (I thought her three day stay was up, but I must be wrong). But I fully expect she’ll find some basis to bigfoot her way into DOJ’s inherent authority again by the end of the day.

But this week, the result of her bigfooting poses new Constitutional problems. She is interfering with Chuck Grassley and Dick Durbin’s constitutional duty to advise and consent to Donald Trump’s nominees.

It’s not just me saying it. In the letter to Merrick Garland signed by aspiring Deputy Attorney General Todd Blanche and PADAG designee Emil Bove (whom WaPo says will serve as Acting DAG until Blanche is confirmed), complaining about the report, they state explicitly that release of the report would “interfere with upcoming confirmation hearings” (and, apparently, reveal damning new details about DOGE [sic] head Elon Musk’s efforts to interfere in a criminal investigation).

Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.

This is premised on Smith’s report being biased.

Except what Cannon is suppressing consists of sworn testimony from some of Trump’s closest advisors. The damning testimony I keep raising, seemingly debunking Kash Patel’s claim (cited in search warrant affidavits) that Trump had “declassified everything” he took home with him almost certainly comes from Eric Herschmann, installed in the White House by Trump’s son-in-law Jared Kushner.

This witness names at least two other people who, he claimed, would corroborate his claim that Kash’s claims were false.

Another witness described that Kash visited Trump at Mar-a-Lago before he made his claim in Breitbart.

Most importantly, Kash himself provided compelled testimony to a grand jury, represented by Stan Woodward, who not only has been named as Senior Counselor in Trump’s White House, but who (in the guise of Walt Nauta’s attorney), remains on filings fighting to suppress the release of information that could harm Kash’s bid to be FBI Director.

Do Trump’s intended DOJ leadership think Kash’s own sworn testimony is unreliable?

Did Kash renege on his public claims that Trump declassified everything?

Or did he provide testimony that conflicts with that of multiple witnesses, in which case Jack Smith might have had to explain they would have charged Kash with obstruction, too, except that he testified with immunity.

Kash’s testimony (and that of the witness who appears to be Eric Herschmann) precedes the date of Jack Smith’s appointment. It cannot be covered by Aileen Cannon’s ruling that everything that happened after that was unconstitutional.

Trump’s nominee for FBI Director gave sworn testimony in an investigation into a violation of the Espionage Act. That testimony is almost certainly covered in Volume II of the Jack Smith report. Merrick Garland has described that he would allow Chuck Grassley and Dick Durbin (along with Jim Jordan and Jamie Raskin) to review the document — which is imperative for the ranking members of SJC to perform their duty to advise and consent to Trump’s appointments.

And Aileen Cannon has, thus far, said that Grassley and Durbin can’t do their job. They can’t consider Kash Patel’s conduct in an Espionage Act investigation in their review of Kash’s suitability to be FBI Director. The ranking members of the Senate Armed Services Committee have reviewed Pete Hegseth’s FBI background check, but Grassley and Durbin have been deprived of the ability to read about Kash Patel’s role in a criminal investigation into hoarding classified documents.

Durbin may well have standing to complain about Cannon’s interference in his constitutional duties. It’s high time he considered making the cost of Cannon’s interference clear.

Update: Steve Vladeck explains how I miscounted three “days:”

Under Federal Rule of Civil Procedure 6(a)(1)(C), when a court order gives a time period in days, we “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In other words, Cannon’s injunction, if it’s not modified, will expire (clearing the way for the public release of the January 6 volume) at the end of the day, today (and not, as many assumed, yesterday).

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Calvinball

January 10, 2025/43 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Yesterday at 7:39PM, the 11th Circuit denied Walt Nauta and Carlos De Oliveira’s bid to enjoin the Jack Smith report. But the unsigned order did not tell Aileen Cannon to fuck off. Instead, it invited DOJ to appeal her decision.

ORDER:

Appellees’ “Emergency Motion for Injunction with Relief Requested by January 10, 2025” is DENIED.

To the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.

DAVID J. SMITH Clerk of the United States Court of Appeals for the Eleventh Circuit

ENTERED FOR THE COURT – BY DIRECTION

DOJ did appeal; their appeal hit Judge Cannon’s docket around 11:04PM.

NOTICE OF APPEAL by USA as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira Re: 682 Order. Filing fee $ 605.00. USA/FPD Filer – No Filing Fee Required.

Just after midnight, DOJ filed a notice of appeal to the existing 11th Circuit docket.

Earlier this evening, January 9, this Court denied defendants’ emergency motion to enjoin the Attorney General from publicly releasing any portion of the Final Report of the Special Counsel. The Court further indicated that, “[t]o the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.”

We write to notify the Court that the United States has tonight filed a notice of appeal from the district court’s order of January 7, 2025. See Dkt 686. As the Court knows, that order temporarily enjoined the Department of Justice, the Attorney General, the Special Counsel, and others from releasing or sharing the Special Counsel’s Final Report “outside the Department of Justice” pending this Court’s ruling on defendants’ emergency motion. Dkt. 682 at 2. The district court specified that this prohibition would “remain[] in effect until three days after” this Court’s resolution of defendants’ motion in this Court. Id

[snip]

Given the unusual exigencies of this case, as illustrated by the emergency motions practice in both the district court and this Court, the United States respectfully renews its request that this Court promptly vacate the district court’s temporary injunction.1

1 The government’s notice of appeal, filed tonight, squarely invokes this Court’s appellate jurisdiction. As soon as the new appeal is docketed in this Court, the United States intends to move to have that appeal consolidated with this one. To the extent there is any doubt concerning the Court’s authority to review the temporary injunction, furthermore, we respectfully request that the Court construe our appeal as a petition for a writ of mandamus. See Suarez-Valdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (holding that appeal can be construed as a petition for mandamus if the Court harbors doubts as to its appellate jurisdiction).

They renewed their request to tell Cannon to fuck off, and asked them to treat this as a writ of mandamus in the meantime.

Because the 11th Circuit order is unsigned, it’s really difficult to understand what whatever judges involved intend by this muddle — besides giving Nauta and De Oliveira a shot at appealing to SCOTUS on the very narrowed question before the 11th Circuit: whether they can prohibit Merrick Garland from doing anything given it will cause them no harm.

By inviting DOJ to appeal, they have squarely invoked the 11th Circuit’s appellate jurisdiction, meaning Cannon should be barred from meddling any more (not like that ever stopped her).

And if SCOTUS does nothing before 7:39PM on Sunday, then Garland can do what he says he wants: release the January 6 report and share the documents report with the Chairs and Ranking members of the Judiciary Committees.

But if DOJ files their appeal, then the 11th Circuit can weigh in on Cannon’s far more expansive demands.

There are at least hints here that DOJ is going to take steps to share the reports one way or another.

Until then, we’re waiting to learn how this game of Calvinball will turn out.

Update: Here’s DOJ’s motion to reverse Aileen Cannon.

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ABC Treats Kamala’s 21-Year Old Misstatement about Prosecutions as News but Not Trump’s Daily Lies about His Own Crimes

August 29, 2024/99 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, Hunter Biden, January 6 Insurrection, Mueller Probe /by emptywheel

As the mainstream press continues to soil itself like toddlers over Kamala Harris’ interview tonight, I was going to use this CNN piece — suggesting questions about how the VP’s stance on immigration has changed — as an example of the complete collapse of any sense of newsworthiness.

After all, Donald Trump has still never been asked, much less answered, how he plans to fulfill his promise of mass deportations, something that might be impossible without dramatic escalation of police force against both citizens and not. He hasn’t been asked how he’ll pay for it, which would be prohibitively expensive. He hasn’t asked who will do the jobs, such as in agriculture, that keep America’s cost of living relatively low. He hasn’t been asked if he’ll separate families, especially marriages empowered by Obergefell.

Trump hasn’t been asked the most basic questions about one of his only policy promises.

CNN’s Eva McKend has really good questions about immigration policy. In another place and time they’d be totally valid questions!

But given the failure by the entire press corps to ask Trump about a policy promise that would serve as — and assuredly is intended to serve as — a bridge to fascism, it is the height of irresponsibility to waste time on the shifts in Harris’ immigration views, because they don’t matter in the face of Trump’s promises to sic cops on American families in pursuit of brown people.

So that was going to be my exemplar of how completely the press corps has lost any sense of proportionality regarding what counts as news.

Then I read this piece from ABC, which makes a big deal out of the fact that in 2003 — 21 years ago!!! — some Kamala Harris campaign fliers said she prosecuted over a hundred cases, when she should have said she was involved in that many.

But during a debate held in the runup to Election Day 2003 on KGO Radio, Harris’ then-opponent, veteran criminal defense attorney Bill Fazio, accused her of misleading voters about her record as a prosecutor and deputy district attorney in California’s Alameda County.

“How many cases have you tried? Can you tell us how many serious felonies you have tried? Can you tell us one?” Fazio asked Harris, according to audio ABC News obtained of the debate, which also included then-current San Francisco District Attorney Terence Hallinan.

“I’ve tried about 50 cases, Mr. Fazio, and it’s about leadership,” Harris responded.

Fazio then pointed out campaign literature where Harris had been claiming a more extensive prosecutorial record.

“Ms. Harris, why does your information, which is still published, say that you tried hundreds of serious felonies? I think that’s misleading. I think that’s disingenuous. I think that shows that you are incapable of leadership and you’re not to be trusted,” Fazio said. “You continue to put out information which says you have tried hundreds of serious felonies.”

[snip]

Asked this week about Harris’ prosecutorial experience before she became district attorney, a spokesperson for Harris’ presidential campaign used slightly different language to describe her record — saying she was “involved in” hundreds of cases.

This is insane!! Having prosecuted 50 felonies is a lot, for an entire career! To make a stink about this 21-year old misstatement would be unbelievable on its face.

But it is just contemptible, given the amount of lies Donald Trump tells about his own crimes that ABC lets go unmentioned.

Just as one example, check out how ABC covered Donald Trump’s August 8 Mar-a-Lago presser. In that presser, Trump seems to have falsely claimed he did oversee a peaceful transfer of power (the only lie NYT called out in its coverage of this presser). He lied about the four people who were killed that day. He lied about his role in sending his mob to the Capitol. He lied about what those mobsters chanting “Hang Mike Pence” were seeking to do. He lied about how Jan6 defendants are being treated. [All emphasis here and elsewhere my own.]

QUESTION: Mr. President, you were – you just said that it was a peaceful transfer of power last time when you left office. You didn’t (inaudible) …

TRUMP: What – what’s your question?

QUESTION: My question is you can’t (inaudible) the last time it was a peaceful transfer of power when you left office?

The second one (ph) …

TRUMP: No, I think the people that – if you look at January 6th, which a lot of people aren’t talking about very much, I think those people were treated very harshly when you compare them to other things that took place in this country where a lot of people were killed. Nobody was killed on January 6th.

But I think that the people of January 6th were treated very unfairly. And they – where – they were there to complain not through me. They were there to complain about an election. And, you know, it’s very interesting. The biggest crowd I’ve ever spoken to, and I said peacefully and patriotically, which nobody wants to say, but I said peacefully and patriotically.

Trump made a misleading crack meant to suggest that Arthur Engoron undervalued Mar-a-Lago.

TRUMP: It’s a hard room because it’s very big, if you don’t …

(LAUGHTER)

… this is worth $18 million.

Trump lied that the prosecutions against him — all of them — are politically motivated. He lied that “they” have weaponized government against him. He lied that the Florida case, in which he was investigated for the same crime as Joe Biden, was weaponized. He falsely claimed that the NY cases are controlled by DOJ.

TRUMP: Because other people have done far bigger things in see a ban [ph] and sure, it’s politically motivated. I think it’s a horrible thing they did. Look, they’ve weaponized government against me. Look at the Florida case. It was a totally weaponized case. All of these cases.

By the way, the New York cases are totally controlled out of the Department of Justice. They sent their top person to the various places. They went to the AG’s office, got that one going. Then he went to the DA’s office, got that one going, ran through it.

No, no, this is all politics, and it’s a disgrace. Never happened in this country. It’s very common that it happens, but not in our country. It happens in banana republics and third-world countries, and that’s what we’re becoming.

Trump claimed he wouldn’t have wanted to put Hillary in jail when, on his orders, DOJ investigated the Clinton Foundation for the entirety of his term and then John Durham tried to trump up conspiracy charges against her (and did bring a frivolous case against her campaign lawyer). Trump also lied about calming, rather than stoking, the “Lock her up” chants at rallies. Trump lied about what files Hillary destroyed after receiving a subpoena (and who destroyed them).

TRUMP: I don’t think it’s appropriate for me to talk about it. I think it’s a tragic story, if you want to know the truth. And I felt that with Hillary Clinton, too. You know, with Hillary Clinton, I could have done things to her that would have made your head spin. I thought it was a very bad thing, take the wife of a President of the United States and put her in jail. And then I see the way they treat me. That’s the way it goes.

But I was very protective of her. Nobody would understand that, but I was. I think my people understand it. They used to say “lock her up, lock her up,” and I’d say “just relax, please.” We won the election. I think it would be very – I think – I think it would have been horrible for our country if I – and we had her between the hammering of all of the files.

And don’t forget, she got a subpoena from the United States Congress, and then after getting the subpoena, she destroyed everything that she was supposed to get. I – I – I could – it – I didn’t think – I thought it was so bad to take her and put her in jail, the wife of a President of the United States. And then when it’s my turn, nobody thinks that way. I thought it was a very terrible thing. And she did a lot of very bad things. I’ll tell you what, she was – she was pretty evil.

But in terms of the country and in terms of unifying the country, bringing it back, to have taken her and to have put her in jail – and I think you know the things as well as I do. They were some pretty bad acts that she did.

Depending on how you count, that’s around twelve lies in one hour-long press conference. They’re proof of Trump’s abuse of the presidency, his refusal to cooperate with an investigation like Joe Biden had, his lifelong habits of fraud, and his assault on democracy.

And these are only the lies about his own (and his eponymous corporation’s) crimes! They don’t include the lies about abortion or gun laws and shootings, other lies about the law he told in that presser.

And yet ABC covered none of those lies, focusing instead on Trump’s false claims about crowd size.

Crowd size.

These aren’t the only lies about justice Trump routinely tells. He routinely lies that he “won” the documents case, that he was declared innocent or that Biden was only not prosecuted because he was too old. They don’t include the lies Trump has told about the Hunter Biden case, the Russian investigation, his actual actions in the Ukraine impeachment. Trump continues to lie about whether he sexually assaulted E Jean Carroll. He lies about his Administration’s jailing of Michael Cohen to shut him up.

Then there are Trump’s renewed false claims, in the last day, about the superseding indictment against him.

Trump lies all the time. He lies about the cases against him, about his own crime. He lies with a goal: to present rule of law as a personal grievance. Those lies go to his core unfitness to be President.

And yet, aside from some good reporting (particularly from Katherine Faulders) on these crimes, ABC never bothers to fact check Donald Trump’s lies about rule of law, not even his own prosecutions.

It is the height of irresponsibility to adopt this double standard — to ignore Trump’s corruption of rule of law while chasing a campaign exaggeration made two decades ago. It was bad enough that the press corps sits there, docilely, as Trump corrupts rule of law every time he opens his mouth. But to then try to make a campaign issue about whether Kamala Harris was involved in or prosecuted 50 cases decades ago?

ABC claims that Kamala Harris made misstatements. But their own failure to report on Trump’s false claims is a far, far greater misrepresentation of the truth, and it’s a misrepresentation of the truth they repeat every day.

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How to Fact Check Trump’s Lies about His Document Case

August 1, 2024/87 Comments/in 2024 Election, emptywheel, Hunter Biden, January 6 Insurrection, Leak Investigations /by emptywheel

I just won the case in Florida. Everyone said that was the biggest case, that was the most difficult case. And I just won it.

Biden has a similar case, except much worse. I was protected under the Presidential Records Act. Biden wasn’t, because he wasn’t President at the time. And he had 50 years worth of documents, and they ruled that he was incompetent, and therefore he shouldn’t stand trial.

And I said, isn’t that something? He’s incompetent and he can’t stand trial — and yet, he can be President. Isn’t that nice? But they released him on the basis that–

[Goba attempts to interrupt]

— that he was incompetent. They said he had no memory, nice old guy, but he had no memory. Therefore we’re not gonna prosecute him.

I won the case. It got very little publicity. I didn’t notice ABC doing any publicity on it, George Slopodopoulos. I didn’t notice you do any publicity on it at all.

[Scott tries to interrupt]

I won the case, the biggest case. This is an attack on a political opponent. I have another one where I have a hostile judge

Scott: Sir, if you don’t mine, we have you for a limited time. I’d love to move onto a different topic.

Trump: No excuse me, you’re the one that held me up for 35 minutes.

The three women who attempted to interview Trump yesterday had an uneven performance. At times, their questioning flummoxed Trump. But in several cases, when he took over the interview, they just sat there silently as he lied at length.

A particularly egregious moment came in his false claims about the parallel investigations into his and President Biden’s retention of classified information. Trump told several lies without (successful) interruption. It was an unfortunate missed opportunity for correction, because Trump repeats these lies in his stump speech all the time, and it may be some time before someone competent has the ability to correct them in real time again.

Since Trump is going to keep telling the lie, I’d like to talk about how to fact check it.

Elements of the Offense

It starts with the elements of the offense — the things that prosecutors would have to prove if presenting this case to a jury. While Aileen Cannon has entertained doing fairly novel things with jury instructions, a model jury instruction for 18 USC 793(e), the statute considered with both men, includes the following five elements:

Did the defendant have possession of documents without authorization? The investigations into both Trump and Biden started when the Archives became aware that they had classified documents at their home. Contrary to what Trump said, the Presidential Records Act applies to both him and Biden, insofar as both were required to turn over any document that was a Presidential record when the Administration in which they served ended. That’s the basis of the proof that they had unauthorized possession of the documents that happened to be classified. That said, the PRA has an exception, however, for, “diaries, journals, or other personal notes serving as the functional equivalent of a diary,” which is relevant to why Biden wasn’t charged in two of four items Robert Hur considered charging seriously.

Trump has claimed that he had the ability to convert Presidential Records — even highly classified ones — into personal records, and thereby to take them home. But if this ever goes to trial, prosecutors would show that Trump first espoused that theory, which he got from non-lawyer Tom Fitton, in February 2022, long after the time he would have had to convert the documents to personal records.

Did the document in question relate to the national defense? The question of whether a document is National Defense Information or not is left to the jury to decide. That’s likely one reason why Jack Smith’s team included a bunch of highly classified documents among those charged. Generally, juries are asked to decide whether the government continues to take measures to keep a charged document secret, and whether it has to do with protecting the United States. A number of the documents charged against Trump pertain to either the US or other countries (like Iran’s) nuclear weapons programs.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation? Generally, prosecutors prove this by pointing to training materials cleared personnel get on classified information, and that’s one reason Jack Smith obtained the letters Trump’s White House sent out about classified information. With both Trump and Biden, however, prosecutors would also rely on their public comments talking about how important it is to protect classified information. In Trump’s case, prosecutors would or will use both the things he said to Mark Meadows’ ghost writer and Susie Wiles when he shared classified information, but also the things he said during the 2016 campaign — targeted at Hillary — about the import of protecting classified information.

Did he keep this document willfully? For both men, prosecutors would need to show that they realized they had classified documents, and then retained them. Given the extended effort to recover documents from Trump, it would be far easier to do for Trump than for Biden.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it? This is an element of the offense that Robert Hur misstated in his report (as I wrote here). It’s not enough to prove that someone willfully retained classified documents he wasn’t authorized to have, you also have to prove he failed to give them back. Normally, this is done (in part) by pointing to someone’s exit interview, when they are read out of their compartments and asked to give everything back. Because Presidents and Vice Presidents don’t have clearance and so aren’t read out of them, it is normally harder to prove that someone affirmatively refused to give documents back. But not in Trump’s case, which is what really distinguishes him from Biden, because the Archives and DOJ kept asking for the documents, including via subpoena, and Trump kept playing games to withhold them.

Theories of Biden Crime

There were four main documents or sets of documents for which Robert Hur considered charging Biden. They don’t include the 50 years of documents Trump described. Those were included in boxes of documents sent to universities; most were barely classified still if at all, and since Biden had given them away, it would be hard to prove he intentionally kept them.

Iran documents: The most sensitive documents found in the Biden investigation were some documents pertaining to Iran found in a box in a closet in Penn Center. Hur determined they had been sent to the Naval Observatory for a meeting Biden had with a bunch of Senators to suss out where they were on Obama’s Iran deal. They may never have gotten moved back to the White House, and were likely stuck in a box and moved to Penn Center by staffers when Biden moved out of the Naval Observatory. These documents were unquestionably Presidential records and National Defense information, but Hur had no evidence Biden knew they were there.

Afghan documents: Hur spent a lot of time trying to prove that, when Biden told his ghost writer during a meeting in his Virginia house on February 16, 2017 that, “I just found all this classified stuff downstairs,” he was referring to several dated folders pertaining to Afghanistan that were found in a ratty box in Biden’s garage in a consensual search. There were many problems with this theory: Hur couldn’t prove that the documents had ever been in the Virginia house (and so could have been downstairs when Biden made the comment); he couldn’t prove that Biden had personally put them in the box where they were found; he couldn’t come up with a compelling argument for why he would have retained them. When Hur included his language about what a forgetful old fogey Biden was, he did so to cover the possibility that Biden forgot he had the documents he hypothetically discovered in 2017 and so didn’t return them at that point, in 2017. But Hur would never have gotten close to where Biden would be relying on faulty memory, because Hur didn’t have very compelling evidence to prove his hypothesis about how the documents got into the garage in the first place, much less that Biden was involved in that process.

Afghan memo: Hur’s extended effort to make a case out of the Afghan documents was particularly difficult given that the best explanation for what Biden was referring to when mentioning classified documents was a 40-page handwritten memo Biden sent Obama in Thanksgiving 2009 to try to dissuade him from surging troops in Afghanistan. (The second best explanation for what Biden was referring to was a set of documents he had recently returned in 2017 when he made the comment.) That memo was found in a drawer in Biden’s office. Biden ultimately admitted to keeping it for posterity, meaning it might fall under the PRA exception for diaries. Because it was handwritten, it had no classification marks and couldn’t be proven to have obviously classified information, much less information still classified in 2023, when it was found.

Diaries: The FBI also found a bunch of notebooks that Biden called diaries and Hur called notebooks. When reading them to his ghost writer, Biden exhibited awareness they included sensitive information, which Hur argued was proof he knew they had classified information. Biden had a very good case to make that these fell under the PRA exception for diaries, as well as decades of precedent, including Ronald Reagan, that DOJ would not charge someone for classified information in his diaries. It would have been impossible to prove that Biden willfully retained something he knew he couldn’t retain, because Biden knew other Presidents and Vice Presidents hadn’t been prosecuted for doing the same exact thing.

There simply was no document or set of documents for which Hur could prove all the elements of offense.

Why You Can Charge Trump

As noted above, the thing that distinguishes Trump from Biden is that Biden found classified documents and invited the FBI to come look for more, making it virtually impossible to prove the final element of offense (the one Hur botched), that Biden refused to give them back.

Trump, by contrast, spent a full year refusing to give documents back, including after DOJ specifically subpoenaed him for documents with classification marks.

There were 32 documents charged against Trump. They include:

The document that Trump showed to Meadows’ ghost writers in 2021 and acknowledged was classified; that was returned to NARA in January 2022. You can charge this because prosecutors have a recording of Trump acknowledging it was classified months before he ultimately returned it.
Ten documents among those returned in response to a subpoena in June 2022. It’s unclear how Smith intends to prove that Trump knew he had these after he returned the first set of documents in 2021. But most if not all of them date to fall 2019, so he may know why Trump would have retained them. Matt Tait has argued at least some of them pertain to the US withdrawal from Turkey.
Ten documents found, in the August 2022 search, in the same box also containing bubble wrap and a Christmas pillow. Among the ten documents was one classified Formerly Restricted, meaning that, under the Atomic Energy Act, Trump could not have declassified it by himself.
Five more documents, also found in August 2022, that had been stored in boxes in the storage closet, including the one captured in a picture Walt Nauta took of documents that had spilled out of the boxes.
Three documents found during the Mar-a-Lago search in the blue leather bound box found in the closet in Trump’s office. At least a few of these likely pertain to Trump’s withdrawal from the Iran deal. These are likely documents that Trump referred to.

For every charged document besides the Iran one, then, prosecutors can show that Trump withheld the documents after he first returned documents in January 2021. Trump will certainly argue that he may not have known he had those specific documents. But Trump’s decision to end his sorting process in January 2021 and his efforts to thwart Evan Corcoran’s June 2022 search will go a long way to prove intent.

How Trump’s Case Got Dismissed

Trump falsely claimed he “won” his classified documents case. That’s false: Aileen Cannon dismissed it, just in time for the RNC. Her argument that Jack Smith was unconstitutionally appointed isn’t even the primary one that Trump’s attorneys were making: that Smith required Senate approval and that his funding was improper. Rather, she argued that Merrick Garland simply didn’t have the authority to appoint Smith in the way he did.

There are several reasons the distinction is important.

First, if SCOTUS upholds Cannon’s theory, then it will hold for all similar appointments. That extends unquestionably to Hur’s appointment, because like Smith he was a non-DOJ employee when appointed. It likely also extends to Alexander Smirnov, into whom most investigative steps occurred after David Weiss was appointed as a Special Counsel under the same terms as Smith and Hur, and whose alleged crimes happened somewhere besides Delaware. Whether it applies to Hunter Biden is a closer question: Judge Mark Scarsi seems poised to argue that since Weiss had already charged Hunter, his appointment is different (and given the way Scarsi has worked so far, I don’t rule out him trying to find a way to make this unappealable).

In other words, if the steps Jack Smith took after November 2022 were unconstitutional, then it means everything Hur did after January 2023 was also unconstitutional. If Trump “won,” then he needs to stop making any claims about Hur’s interview with Biden, because it was unconstitutional.

More importantly, not even Aileen Cannon has ruled that Trump didn’t knowingly and intentionally retain classified documents. All she has ruled is that if DOJ wants to charge him for it, they need to recreate the investigative steps completed since November 2022, under the review of US Attorney for Southern Florida Markenzy Lapointe.

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Boiled Frog Journalism: Is Trump an Agent of Saudi Arabia, and Other Pressing Questions Buried under Biden’s Age

July 17, 2024/103 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, Foreign Influence, Hunter Biden, Mueller Probe /by emptywheel

A jury found Robert Menendez guilty on all charges yesterday, including those alleging he accepted payments from Egypt and Qatar (I didn’t follow the trial closely enough to figure out which country ultimately provided the gold). The verdict marks DOJ’s first successful conviction under 18 USC 219, basically, working for a foreign country while serving as a member of Congress.

Henry Cuellar faces the same charge.

While the RNC largely overshadowed the verdict, Chuck Schumer, Cory Booker, and Governor Phil Murphy have all called on Menendez to step down.

The reasons why he should resign seem obvious: You can’t continue to serve the people of New Jersey after a jury determined you were actually using your position of power to serve two wealthy foreign countries.

Is Trump a Saudi foreign agent?

And yet we are two days into Trump’s nomination party, and no one has asked — much less answered — whether Donald Trump is a business partner, paid foreign agent, or merely an employee of Saudi Arabia.

This is not a frivolous question. Since Trump left office, his family has received millions in four known deals from the Saudis:

A deal to host LIV golf tournaments. Forbes recently reported that Trump Organization made less than $800K for about half the tournaments it has hosted. But Trump’s role in the scheme has given credibility to an influence-peddling scheme that aims to supplant the PGA’s influence. When Vivek Ramaswamy learned that two consultants to his campaign were simultaneously working for LIV, he forced them to resign to avoid the worries of influence-peddling. Yet Trump has continued to host the Saudis at his properties.
A $2 billion investment in Jared Kushner’s private equity firm, in spite of the fact that analysts raised many concerns about the investment, including that he was charging too much and had no experience.
A deal to brand a property in Oman slated to open in 2028, which has already brought Trump Organization $5 million. The government of Oman is a key partner in the deal, signed with a huge Saudi construction firm.
A newly-announced deal with the same construction firm involved in the Oman deal, this time to brand a Trump Tower in Jeddah.

These Saudi deals come on top of Trump’s testimony that Turnberry golf course and his Bedford property couldn’t be overvalued because some Saudi would be willing to overpay for them.

But I believe I could sell that LIV Golf for a fortune, Saudi Arabia. I believe I could sell that to a lot of people for numbers that would be astronomical because it is like — very much like owning a great painting.

[snip]

I just felt when I saw that, I thought it was high. But I could see it — as a whole, I could see it if this were s0ld to one buyer from Saudi Arabia — I believe it’s the best house in the State of New York.

And while Eric Trump, not his dad, is running the company, Eric also has a role in the campaign and his spouse Lara has taken over the entire GOP.

Trump never fulfilled the promises to distance himself from his companies in the first term. A very partial review of Trump Organization financial records show the company received over $600K from the Saudis during his first term. As far as I’m aware, no one has even asked this time around.

Which means as things stand, Trump would be the sole beneficiary of payments from key Saudi investors if he became President again. Trump would be, at the very least, the beneficiary of a business deal with the Saudis, as president.

Admittedly, under the Supreme Court’s latest ruling on gratuities, it might be legal for Trump to get a bunch of swank branding deals as appreciation for launder Saudi Arabia’s reputation (one of the things for which Menendez was just convicted).

But that doesn’t mean it should be ignored, politically. It doesn’t mean American voters shouldn’t know these details. It doesn’t mean journalists (besides NYT’s Eric Lipton, whose most recent story on this was buried on page A7) shouldn’t demand answers.

What deals has Trump made with Putin and/or Orbán?

At some point at the RNC, Don Jr claimed that his Daddy would get poor coverage from real journalists because “they lied about Russia Russia Russia.”

Only, they didn’t.

In guilty pleas, Trump’s people confessed that they were the ones lying. George Papadopoulos lied to hide when he learned of the Russian hack-and-leak operation. Mike Flynn lied to hide his efforts to undermine Barack Obama’s foreign policy with Russia. Micahel Cohen lied to hide his contact with the Kremlin during the campaign in pursuit of the kind of Trump Tower deal Trump has since inked with the Saudis.

Don Jr was spared charges, in part, because he’s too dumb to be expected to know he shouldn’t accept campaign dirt from Russian nationals.

Robert Mueller found that Trump’s campaign manager briefed someone Treasury has since labeled a Russian spy, Konstantin Kilimnik, on his plan to win the Rust Belt, even while discussing a deal to carve up Ukraine and get tens of millions in benefits. Kilimnik passed on polling data and the campaign strategy to Russian spies. Amy Berman Jackson ruled that Paul Manafort lied to hide that.

At the time the FBI obtained Roger Stone’s cell site location in August 2018, they had reason to believe he had gotten advance notice of both the dcleaks and the Guccifer 2.0 releases. Stone had multiple contacts with Trump about the releases and prosecutors hoped to obtain a notebook where Stone documented all of those conversations. A jury found that Stone lied to hide whence he learned all this.

Trump pardoned all but Cohen and Jr for the lies they told to hide what really happened with Russia. And we still don’t know why the clemency for Roger Stone Trump stashed in his desk drawer had a Secret document on Macron associated with it.

And Trump has only gotten more shameless since. In 2019, during his impeachment for extorting Volodymyr Zelensky to investigate Joe Biden and his kid, Trump was warned that among the Ukrainians from whom Rudy Giuliani was soliciting dirt on the Bidens was at least one Russian agent, Andrii Derkach.

Trump did nothing to stop Rudy from sidling up to a Russian agent. And when Rudy came back, Bill Barr set up a side channel to ingest that dirt — a side channel the resulted in an FBI informant with self-professed ties to Russian spies attempting to frame Joe Biden for bribery, an attempt to frame Biden that likely goes a long way to explain why the plea deal against Hunter Biden collapsed.

Once upon a time, it was a big deal that Trump refused to let an activist make the RNC platform’s defense of Ukraine more hawkish.

Now, however, Trump no longer hides that he’s willing to let Putin dismember Ukraine. He welcomed Viktor Orbán’s pitch of a plan to do just that — but there has been no readout from Trump’s side of what happened. Orbán, however, has told other EU nations that Trump will moved for “peace” immediately after being elected — a replay of what Flynn lied to cover up in 2017 — largely by withdrawing US support for Ukraine.

In the past, Trump has gone even further than this, suggesting he’ll do nothing as Putin invades NATO states.

Meanwhile, JD Vance is, if anything, even more pro-Russian than Trump, as are some of the Silicon Valley oligarchs who now back Trump’s campaign since the Vance pick.

Trump’s plan of capitulation to Russia will go a long way to ending the Western rules-based order, the greatest wish of Putin and Xi Jinpeng.

And thus far we know just one of the things that Russia seems to be doing to help Trump’s campaign: detaining WSJ reporter Evan Gershkovich until Trump gets elected, just as Iran held onto hostages to help Reagan get elected. Avril Haines recently made clear Russia is planning on helping in other ways as well.

That’s how “Russia Russia Russia” has worked. It’s a shameless lie that Mueller found nothing, a lie built off years of propaganda. Indeed, Trump’s willing acceptance — or, in Rudy’s case, outright solicitation — of Russia’s help to get elected has only gotten more brazen. Yet rather than call Don Jr on his “Russia Russia Russia” lie, reporters simply let the pressing question of whether Trump will end the alliance of democracies in a second term go unasked.

What happened to the missing classified documents?

Amid the focus on Aileen Cannon’s stall then dismissal of Trump’s stolen documents charges, something has been missed: There appear to be documents missing. Here’s what we know:

According to the indictment that Judge Cannon just threw out, after Trump tricked Evan Corcoran into searching only about half the boxes containing stolen documents, he flew to Bedminster with “several” of the boxes he had excluded from the search.
In July 2022, Trump and Walt Nauta snuck back to Mar-a-Lago from Bedminster — to check on the boxes, one witness told Jack Smith.
When the FBI searched Mar-a-Lago on August 8, 2022, they failed to search a closet in his bedroom to which he had added a new lock.
Several searches overseen by Tim Parlatore found no new documents, though he did find a new classified document folder.

Given FBI’s failure to do a complete search adn Parlatore’s failure to find documents at Bedminster, the most likely way to learn what happened to them would be to get Walt Nauta to flip, something that, as I suggested here, his indictment might normally have done. But (correct, as it turned out) expectations that the prosecution would go away kept Nauta from cooperating.

And as a result, we have literally no idea how many documents Trump managed to withhold from the FBI’s search, or what he did with them.

The continued focus on Joe Biden’s three year seniority over Trump

Again, this kind of betrayal of America once mattered in Trump’s campaigns.

No longer.

It’s not happening because journalists are so cowardly they can be cowed with a mere “Russia Russia Russia” chant.

And it’s not happening because journalists have lost all sense of proportion — and for many of them, all sense of public good.

Journalists are making much of a confrontation between Jason Crow and Biden, related by Julia Ioffe, in which Biden insisted he had been great on foreign policy.

The campaign did not, however, dispute this next part, about Crow and his Bronze Star. In a video of the Zoom that I was able to view, you can hear Biden chastising Crow, who asked about the importance of national security to voters. “First of all, I think you’re dead wrong on national security,” the president says, the emotion at times garbling his words. “You saw what happened recently in terms of the meeting we had with NATO. I put NATO together. Name me a foreign leader who thinks I’m not the most effective leader in the world on foreign policy. Tell me! Tell me who the hell that is! Tell me who put NATO back together! Tell me who enlarged NATO, tell me who did the Pacific basin! Tell me who did something that you’ve never done with your Bronze Star like my son—and I’m proud of your leadership, but guess what, what’s happening, we’ve got Korea and Japan working together, I put Aukus together, anyway! … Things are in chaos, and I’m bringing some order to it. And again, find me a world leader who’s an ally of ours who doesn’t think I’m the most respected person they’ve ever—”

“It’s not breaking through, Mr. President,” said Crow, “to our voters.”

“You oughta talk about it!” Biden shot back, listing his accomplishments yet again. “On national security, nobody has been a better president than I’ve been. Name me one. Name me one! So I don’t want to hear that crap!”

It’s another instance where Biden responds stubbornly when Democrats try to push the president to drop out of the race. And that’s why reporters are gleefully dunking on Biden’s comments.

But it’s also an instance where Biden is making a really good point: He has restored America’s alliances to what they were before Trump destroyed them.

And the press is only telling that story — and doesn’t even realize that they are only telling that story — as part of their singular obsession with Biden’s age.

It’s a confession, really, that they have abdicated any concern for the kind of accomplishments of which Biden is justifiably bragging (ignoring Gaza). They have been bullied out of covering any of Trump’s glaring betrayals of the country the leadership of which he wants to monetize.

Trump might literally be an agent of a foreign power — just like Robert Menendez has been adjudged — and this mob calling themselves journalists would exhibit the least interest, much less persistent concern. Journalists don’t even care that both of Trump’s most suspect foreign allegiances involve the exploitation of journalists for political gain, first Jamal Khashoggi and then Gershkovich. Journalists have ignored that recent history, even after he picked Vance, someone who formally asked Merrick Garland to criminally investigate Robert Kagan (a neocon whom Vance called left wing) for inciting insurrection because he discussed liberal states resisting Trump in a second term.

Trump might literally sell out the next journalist who opposes him to be chopped up by some foreign dictator. And yet the press corps seems not to give a rat’s ass.

Because Joe Biden is three years older than Donald Trump.

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ABC Treats Kamala’s 21-Year Old Misstatement about Prosecutions as News but Not Trump’s Daily Lies about His Own Crimes

How to Fact Check Trump’s Lies about His Document Case

Elements of the Offense

Theories of Biden Crime

Why You Can Charge Trump

How Trump’s Case Got Dismissed

Boiled Frog Journalism: Is Trump an Agent of Saudi Arabia, and Other Pressing Questions Buried under Biden’s Age

Is Trump a Saudi foreign agent?

What deals has Trump made with Putin and/or Orbán?

What happened to the missing classified documents?

The continued focus on Joe Biden’s three year seniority over Trump

Interesting links

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