Posts

If Dems Successfully Message on News Outlets Lefty Pundits No Longer Read, Did It Ever Happen?

/36 Comments/in /by

In the wake of a WSJ report that Democrats have fallen to a historic approval low, the usual suspects — in this case, David Atkins — have taken to Bluesky to blame everything on Chuck Schumer and Hakeem Jeffries. Again.

Atkins demanded that Democratic leaders talk about Trump conspiring with his personal attorneys to cover things up.

People keep asking “what do you expect Democrats to do???”

I expect Schumer and Jeffries to hold a press conference and say: “Donald Trump is conspiring with his personal attorneys he corruptly installed at DOJ to cover up his close friendship and possible horrific crimes with Jeff Epstein.”

Let me stipulate that the messaging that Schumer and Jeffries do do is often feckless, though in this case, Schumer released a statement on both Xitter and Bluesky on Thursday first arguing that sending Donald Trump’s personal lawyer to meet with Ghislaine “stinks of high corruption,” which led a few articles. That followed around ten other social media posts, including his prediction on Wednesday that, “Maybe Speaker Johnson declared the Epstein Recess to give Trump time to prepare papers for the pardon of Ghislaine Maxwell. Disgraceful” (making Schumer a prominent early adopter of the theory that Trump will pardon the sex trafficker) and a post (again posted to both Xitter and Bluesky) elevating video of Markwayne Mullin admitting Republicans were trying to give Trump cover. And while Jeffries was more focused on redistricting and messaging on the Big Ugly last week, Epstein was a repeated focus in his press conferences (it was the initial focus of Katherine Clark’s comments), and he was mocking Trump on this even before it bubbled into a scandal.

Atkins’ complaints that Dems aren’t messaging on Epstein comes in the wake of three significant earned media wins by Democrats on Epstein in recent weeks:

  • After Dick Durbin released a whistleblower’s description of the 1,000 people Pam Bondi pulled off their day jobs to review Epstein files, Allison Gill responded by releasing damning details of the search, followed days later by NYT. The details of this search will continue to feed the controversy (as well as FOIAs to get the spreadsheet of prominent names discovered in the search, so it can be compared to the list of names Todd Blanche asked Maxwell about in their cozy tête-à-tête). Update: Durbin sent a letter (with Sheldon Whitehouse) to Todd Blanche for information about the meeting, which NYT reported on.
  • After Ron Wyden sent letters in March and June demanding that Todd Bessent and Pam Bondi release FinCEN files on Epstein and Leon Black, NYT did a story on the financial aspects. When Republicans accused Wyden of sitting on this during the Biden Administration, he sent another letter disproving that and mapping out what steps they should take. In a great story on Wyden’s efforts, Greg Sargent noted the value of such letters: “such trolling by lawmakers can be constructive if it communicates new information to the public or highlights the failure of others in power to exercise oversight and impose accountability.”
  • And then there was Ro Khanna’s tactic that shut down the House by leading Mike Johnson to give up on a rule governing last week’s work, which led to follow-on efforts in committees and the Senate. This — which required working with Tom Massie (something lefties religiously disavow) — was a parliamentary score, with series of stories in the Hill beat press to follow.

Almost none of that appears in Atkins’ response to my question why he was ignoring other members. He said he had mentioned a Whitehouse interview, but he ignored the long thread from Whitehouse more directly addressing the corruption, as well as a Podcast with Jamie Raskin where they dedicate the last 5 minutes of to it.

The real tell to Atkins’ willful ignorance (or outright deceit) about what Dems have done is his claim, “I have highlighted [Dems who are pushing this]. But they get lost in the fray when leadership isnt backing them up,” [my emphasis] a day after RTing this story from Axios.

The social media card for the story, which uses Jeffries’ picture above two quotes, misleadingly suggests the Minority Leader said, “This whole thing is just such bullsh**t” … “I don’t think this issue is big outside the Beltway.” Which seems to be as far as Atkins got.

The entire story is premised on those quoted centrists opposing Jeffries’ encouragement to focus on it, and links an earlier story describing Jeffries’ affirmative focus on it.

Why it matters: Minority Leader Hakeem Jeffries’ (D-N.Y.) leadership team has encouraged its members to maintain the drumbeat on Epstein,

The column goes on to list just some of what Dems are doing — with the encouragement of the Minority Leader (the earlier post describes that Ro Khanna worked closely with Jeffries in jamming the Rules Committee).

The other side: Other Democrats argued that going after Republicans on policy and slamming them on Epstein aren’t mutually exclusive. “I think all these issues are linked together,” Rep. Greg Casar (D-Texas) told Axios.

  • “Trump is willing to lie and betray his own people, and he’s willing to take away your health care to give it to his rich friends. … I think it’s all part of one story,” said Casar, the chair of the Congressional Progressive Caucus.
  • Rep. Pramila Jayapal (D-Wash.), a former CPC chair, said similarly: “I’m talking about Medicaid, I’m talking about tax breaks to billionaires — and I’m talking about Epstein, because he fits right in there.”

State of play: Jeffries has surprised some of his members by bear-hugging rank-and-file efforts to force the release of the Epstein files despite his usual reluctance to engage on salacious issues.

  • His messaging arm, the Democratic Policy and Communications Committee, sent out several emails to members’ offices last week on how to message on Epstein, as Politico first reported.
  • “We’ve encouraged members to lean into this, to talk to their constituents about it,” said Rep. Maxwell Frost (D-Fla.), a DPCC co-chair. “It’s an opportunity to speak with people who might usually disagree with you.”

Atkins’ entire whine — based off a premise he would have known was outright bullshit if he had only clicked through to a ragebait story he RTed — was rewarding for Atkins; 17 people RTed it as if it were true, with one person even whining about Garland along the way. But the whole thing was either an affirmative misrepresentation or a confession that Atkins knows fuckall about what Dems have done and simply didn’t bother to check before whining about it.

I won’t lay out all that Dems have done — there are actually multiple stories out that I’m sure even Atkins could read if he bothered to click through on ragebait. It should be enough to say that Dems, with Massie, deprived Republicans of the tools of their majority for a week and have been mocking them relentlessly ever since. That Johnson ran away will continue to feed this story.

But one example is illustrative. Ruben Gallego — often attacked for his centrism and coddling of cryptograft — got into an extended spat with Trump mouthpiece Markwayne Mullin in the Senate last week (the appearance Schumer elevated), after Gallego tried to pass a resolution to release the files. Following that, Gallego appeared on Jim Acosta’s Substack show, where he described how this all reeks of a cover-up (and accused Republicans of revictimizing the victims and exploiting the vulnerabilities of their base). He played on populist concerns about rich people, and mocked Republicans for fleeing like they did when the Brits invaded DC. A centrist Dem delivered up precisely the kind of message Atkins claimed no one is delivering, and he did it two days before Atkins whined about it.

I’m not sure Atkins has an excuse for making a false claim belied by an Axios story he had RTed a day earlier. At some point, a pundit has to be responsible for clicking through to the stories they’re disseminating.

But — again stipulating that Jeffries and Schumer’s messaging is often feckless — I think there’s something else driving much lefty belief that Dems are not messaging, on top of pundits like Atkins making false claims belied by ragebait they’ve disseminated without reading.

In the last several years, fascist-supporting oligarchs have given people good reason to stop consuming a wide variety of media. After Elon Musk bought Twitter — the algorithm of which already disproportionately rewarded right wingers — he invited Nazis to overrun it. In a bid to cultivate Trump’s favor, Jeff Bezos has willfully gutted the WaPo and shut down anti-Trump opinion on the platform. NYT continues to frame most stories in ways that pitch Trump as the hero, with many outright framed to Dem- or trans-bash. Substack, where people like Paul Krugman and Terry Moran and Jim Acosta have fled after having been hounded out of traditional media, also platforms Nazis. Google has allowed AI to enshittify its search function, making it far more difficult to find breaking news.

One by one, lefties have abandoned those platforms, often in a failed attempt to force the oligarchs who own them to reverse course. The decision to abandon those platforms are, for most people, self-evidently ethical decisions.

But the consequences of those ethical decisions are that even if Dems do something great, you will be blind — blinded by ethical choices you yourself made.

Your blindspots might entail the following:

  • You will see (and far too often, help to disseminate) the latest outrage Trump posts to his Truth Social account, as well as the uncontested disinformation in it. Those posts will often silence the moral criticism of Trump, as happened with Rosie O’Donnell.
  • You will view Trump speeches and press sprays, as well as oversight hearings in which Democrats have been forcing real news that often is not getting picked up, through the lens of Aaron Rupar or Acyn, who make it easy but bring their own narrow lens. You might see clips from the traditional media. Not all of those clips will be easy to disseminate yourself without rewarding Xitter.
  • You will see the stories about shitty framing or Dem- (or trans-) punching at NYT, but will miss better routine news stories, and even, sometimes, important breaking reporting.
  • To the extent to which it still exists, you will not see the general access political reporting at WaPo.
  • You will not see Capitol Hill beat reporting that is publicized almost entirely on Xitter, including reports admiringly explaining why chasing Mike Johnson away early took some tactical smarts, unless you subscribe to them.
  • Because there’s not a viral algorithm at Bluesky, you may only see the content from electeds crafted for that platform if you follow them directly and even then only if you happen to be online when they post it; you will not see what they post — very often self-consciously crafted to be more confrontational — on Xitter.
  • You will see rage-bait stories from Axios and Politico designed to drive depression among Dems and often, as Atkins did, you’ll disseminate it without clicking through to see what it really says.
  • You won’t see what right wingers are saying on Fox or NewsMax or Breitbart, not even when they’re bitching about firey speeches Hakeem Jeffries made that didn’t filter into Bluesky.
  • You may entirely miss what is going on on TikTok, which is where a great deal of messaging is happening (so will I, as I learned when I looked for the Rosie O’Donnell post that had been widely covered in right wing media before Trump threatened to strip her citizenship over it).
  • You will have to work harder to find news stories that have been broadly reported.

In short, at least in part due to perfectly ethical decisions from people who used to have a radically different media diet before certain changes accompanying rising fascism, even activist Dems will be largely blind to a great deal of what Dems are doing.

I absolutely support that ethical decision (and after two weeks of doing a great deal of — sometimes very effective, IMO — messaging about Epstein and Tulsi’s disinformation campaign designed to bury it at the Nazi bar, such choices may be crucial for your mental health).

But it is not remotely ethical to make comments about what Dems are or are not doing if you have not checked your blindspots.

More importantly, we will not survive if you respond to the effects of oligarch takeover with passivity, demanding you get fed things as easily as you used to get. That is what they are counting on: that their efforts to make it harder to find important news will lead you to give up and assume it doesn’t exist.

I may be biased, but I’m also allegedly an expert on this, because it was the topic of my dissertation. Finding and disseminating oppositional news is an absolutely critical part of opposing authoritarianism; it can take work and risk your security. But it becomes a fundamental part of citizenship.

The oligarch-led assault on the press started long before Trump started implementing fascism but has accelerated during precisely the period when Democrats have demanded to have Dem messaging land in their lap. There are many things Dem electeds absolutely have to do better (though having spent far too much time on Xitter in the last week, it’s clear there’s a purpose to tailor messaging on both platforms, which I do too). I agree that neither Schumer nor Jeffries is great at this messaging (but am also acutely aware of how much time they’re spending off-camera trying to ensure Dems have a chance in 2026).

But Dems have done almost everything right on Epstein, down to forcing Denny Hastert’s successor to abdicate his power for a week to help Trump cover up his sex trafficking scandal. Yet whining pundits are winning clout on Bluesky by misrepresenting rather than learning from that fact.

Share this entry

Pam Bondi Reportedly Created 1,000 Witnesses to the Jeffrey Epstein File

/33 Comments/in /by

Dick Durbin wrote another of a slew of letters Democrats have sent to Pam Bondi and others about Jeffrey Epstein this year. This one provides details of the review of the Epstein file Bondi ordered:

According to information my office received, you then pressured the FBI to put approximately 1,000 personnel in its Information Management Division (IMD), including the Record/Information Dissemination Section (RIDS), which handles all requests submitted by the public under the Freedom of Information Act (FOIA) and Privacy Act, on 24-hour shifts to review approximately 100,000 Epstein-related records in order to produce more documents that could be released on an arbitrarily short deadline. This effort, which reportedly took place from March 14 through the end of March, was haphazardly supplemented by hundreds of FBI New York Field Office personnel, many of whom lacked the expertise to identify statutorily-protected information regarding child victims and child witnesses or properly handle FOIA requests.

My office was told that these personnel were instructed to “flag” any records in which President Trump was mentioned.

[snip]

5. Aside from the negative backlash you received over the February 27 record release, what was the purpose of placing almost 1,000 FBI IMD personnel on 24-hour shifts to review Epstein-related records over the course of a two-week period in March?

6. Who made the decision to reassign hundreds of New York Field Office personnel to this March review of Epstein-related records?

7. Why were personnel told to flag records in which President Trump was mentioned?

a. Please list all political appointees and senior DOJ officials involved in the decision to flag records in which President Trump was mentioned.

b. What happened to the records mentioning President Trump once they were flagged?

c. Is there a log of the records mentioning President Trump? If yes, please transmit a copy of the log to the Committee and the OIG.

Remember: Trump’s appointees have fired two people who would know details of this: the head of the NY Field Office, James Dennehy, who was forced to retire amid allegations the NYFO was sitting on the files, and Maurene Comey, who has been involved in FOIA responses regarding these files.

Either could now give protected whistleblower statements to Durbin.

But they’re not the only ones.

In her bid to review these files, Bondi created one thousand witnesses to what is in the Epstein file — and Bondi’s attempt to politicize the search for Epstein files.

One thousand.

Update: Durbin’s staff has now posted the letter, plus letters he wrote to Kash Patel and Dan Bongino. Of both FBI men, Durbin asked why they said the video was “raw” when it had actually been altered.

13. Why does the July 7 memorandum describe the surveillance footage as “full raw” when it was modified?

a) Please describe in detail all of the modifications made to the “full raw” surveillance footage before its publication.

And of Kash, he asks what conspiracy theories Kash was chasing.

15. What are the conspiracy theories you are referring to in your July 12 tweet that “were never true?” If there are more than one, please explain each in detail.

He also asked why Bongino had to take a day for his fee fees.

15. Is this dispute between you and White House and DOJ officials the reason behind your July 11 absence from work?

Share this entry

A Summary of Kash Patel’s Disqualifications to Lead FBI

/54 Comments/in , , , , /by

I expect Kash Patel will be confirmed; I even expect that Democrats on the Senate Judiciary Committee will be utterly feckless in Kash’s confirmation hearing tomorrow.

Nevertheless I wanted to summarize his disqualifications.

Kash got where he is by substituting the Steele dossier for the real Russian investigation, which was instrumental in Trump’s success at minimizing the damage of one after another Trump associate lying about what really happened in 2016.

Kash gets a lot of credit for the Nunes Memo, with many right wingers claiming that the Horowitz Report vindicated it.

It didn’t. As I showed, both the Nunes Memo and the Schiff Memo got things right and got things wrong; mostly they just spoke past each other, which was fundamentally based on that substitution of the Steele dossier for the real Russian investigation.

Nevertheless, one of Kash’s lasting gripes (against Robert Hur) has to do with efforts to limit how much Kash was releasing at the time.

Kash did more than that as a House staffer, though. He continued to chase his conspiracy theories as Congress turned to criminalizing Hillary Clinton. He’s actually the staffer who asked the question that set up Michael Sussmann for a failed prosecution years later. He set up what would later become the Durham investigation — a four year effort to criminalize being victimized by a hostile nation-state.

And then, after Durham filed a wildly misleading court filing misrepresenting the discovery by some Georgia Tech researchers that someone was using a YotaPhone inside the Executive Office of the Presidency during the Obama term, Kash sent out a letter outright lying about the claims.

The whole thing is riddled with lies, but ultimately it amounts to a conflation of the Obama-era discovery with the discovery of the ties between a marketing server, Alfa Bank, and a Spectrum Health server. Kash’s letter was the final step before Trump jumped on the lies and called for Sussmann’s execution. Kash is a key cog in the way Trump has elicited threats against others.

Kash also paid a lot of former FBI agents who were disgruntled about having to investigate Trump supporters.

And when news of the discovery that boxes of documents that Trump had returned had classified documents in them, Kash invented a claim that Trump had declassified all those documents.

At least one Jack Smith witness — someone with the potty mouth of Eric Herschmann — disputes any claim there was a standing order to declassify documents. That witness described someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.

Jack Smith described what happened next. When investigators subpoenaed Kash to test his claims that Trump had this standing order, Kash tried to delay compliance indefinitely by hiring a lawyer already busy defending a January 6 seditionist. When the aspiring FBI Director did first testify, Kash pled the Fifth repeatedly.

On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.

On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).

Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]

Aileen Cannon has buried any description of what Kash said when compelled to testify. This nomination should be held until any discussion of Patel in the Jack Smith report is released (but thus far Dick Durbin has shown no interest in doing so; DOJ just dropped their appeal).

But it should never be passed, because Kash is a menace. In his repeated efforts to falsely claim that January 6 defendants were treated any worse than any other mostly-violent pretrial detainees during the COVID period, he suggested that the people detained for assaulting cops were being mistreated.

As I have shown (and Bulwark did before me) Kash’s cheerleading for January 6 defendants amounts to arguing that someone accused of assaulting cops who grabs a gun when his probation officers show up should not then be jailed, nor should someone who directly threatened members of Congress, called on a mob to grab their weapons, and then assaulted cops.

Kash Patel will do and say anything to protect Trump and his flunkies — up to and including risking the safety of members of Congress.

Such a person would not serve as Director of FBI. He would serve as a means to turn government against Trump’s adversaries.

Share this entry

Confirming Kash Patel Will Get Senators “Drug through the Streets”

/6 Comments/in , , /by

When Kash Patel boosted the J6 Choir claiming the video of those housed in DC Jail in March 2023 was proof of a two-tier system of justice, he was suggesting that someone who brought a crowbar — which he called a “weapon” — to the Capitol while promising to drag members of Congress through the streets, then assaulted cops protecting Congress, should not be detained while awaiting trial for assaulting cops.

That’s the significance of Ryan Nichols’ inclusion in the footnote Jack Smith put in his report, listing the identities of some of the J6 Choir members Trump had endorsed.

Nichols was in jail because of the threats he posed to members of Congress.

I’m hearing that Pence just caved. I’m hearing reports that Pence caved. I’m telling you if Pence caved, we’re gonna drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets. Because we’re not going to have our fucking shit stolen. We’re not going to have our election or our country stolen. If we find out you politicians voted for it, we’re going to drag your fucking ass through the streets. Because it’s the second fucking revolution and we’re fucking done. I’m telling you right now, Ryan Nichols said it. If you voted for fucking treason, we’re going to drag your fucking ass through the streets. So let us find out, let the patriots find out that you fucking treasoned this country. We’re gonna drag your fucking ass through the street. You think we’re here for no reason? You think we patriots are here for no reason? You think we came just to fucking watch you run over us? No. You want to take it from us, motherfucker we’ll take it back from you.

And even then, he didn’t remain in prison for the period before he pled guilty.

Nichols challenged his treatment in the DC jail, complaining about the seizure of his discovery and claiming that his incarceration was exacerbating his known PTSD diagnosis. He was further involved in an altercation in September 2022, after which he was segregated, then moved to another facility. He had repeated diagnosis issues with his health care. So in November 2022, Judge Thomas Hogan released Nichols from custody, and he remained out until he pled guilty on November 7, 2023.

But ultimately, Reagan appointee Royce Lamberth sentenced Nichols to what would have been three more years in prison — a total of 63 months and (because Nichols refused to cooperate with Probation on his finances) a record $200,000 fine, one the pardon will presumably wipe away entirely.

Nichols blamed his untreated PTSD for his actions. But Nichols’ sentencing memo revealed a 2019 arrest for assault causing bodily harm that resulted in diversion, one that belies his defense attorney claim he had never been violent before January 6. And prosecutors’ sentencing memo raised all the conspiracy claims Nichols made — many of the same claims that Kash Patel has made about him and others — raising some question about his remorse for his actions.

In addition, although Nichols “agreed with the conduct described in the Statement of Offense” in his presentence interview, PSR ¶ 50, in a post circulated after the plea hearing, members of Nichols’ defense team refers to him as a “political prisoner.” Exhibit J (Substack blog post authored by defense team law clerk present at counsel table for the plea hearing titled “Ryan Nichols: Political Prisoner Of His Own Country”); see also Exhibit K (GiveSendGo page titled “Free My Patriot Prisoner” with messages attributed to Nichols, his wife, and his father prior to the defendant’s plea). Even prior to Nichols entering his plea, his attorney was tweeting statements that directly contradicted the statement of offense in this case. See Exhibit M (October 30, 2023, twitter post from Nichols’ lead counsel).12 These statements threaten “public trust in the rule of law and the criminal justice system [, which] is paramount in the context of January 6 cases.” United States v. Nester, 22-cr-183 (TSC), ECF No. 113 at 6 (internal citation omitted). While the government does not attribute counsel’s statements to the defendant himself (nor does it base its recommendation on such bombastic rhetoric), this Court must appropriately assess whether the defendant has independently accepted responsibility for his criminal conduct. Pleading guilty is not simply the same as accepting the consequences and showcasing remorse under these trying and unique circumstances.

12 The government also notes that, in the months leading up to his plea, Nichols was claiming in public court filings that, in effect, “shadowy teams of plainclothes government agents orchestrated the attack [on the Capitol], leaving a far larger number of innocent Americans to take the fall.” ECF 266 (Order Denying Defendant’s Motion for Disclosure) at 13; see also ECF 244 (Motion for Disclosure), 245 (Supp. Motion for Disclosure), and ECF 251 (Reply to Government’s Opposition to Motion for Disclosure)

The sentence Judge Lamberth imposed in May 2022, 63 months, was about 75% of the government ask of 83 months. While Nichols had a lot of heartfelt things to say about his actions, Judge Lamberth noted that Jan6ers had repeatedly reneged on their statements of remorse, which the recent statements laid out in the government sentencing motion addressed.

Importantly, Nichols himself noted that the solitary confinement to which he was subjected was a COVID protocol, not anything specifically targeting Jan6ers.

I spent months in solitary confinement for 23 to 32-plus hours at a time due to COVID protocols, only allowed out for one hour to shower or make a phone call just to be locked in that 10-by-7-foot cell for another 23 to 32-plus hours at a time. Mental torture is an understatement. I heard grown men screaming and crying out for their mothers, me included. Many nights, I cried myself to sleep. With no court dates, no discovery, and no ending in sight, I felt hopeless and my mental health spiraled out of control. Eventually, I decided that, maybe, I needed to seek professional help. I put in a mental health request, and two weeks later I was back on Zoloft. Though this certainly helped control my mind and get my emotional imbalance in alignment, the solitary confinement was still overwhelming.

And he expressed empathy with the incarceration of people of color.

Your Honor, I know, after almost two-and-a-half years of incarceration, how terrible jail and prison is. The entire atmosphere is violent, dark, and unforgiving. For the majority of my life, I’ve heard, but never been able to empathize with, people of color when they testified to the harsh environment and treatment within the jail and the prison system. Make no mistake, I am now a witness to their testimony. Being in jail and prison is a living hell of eternal separation from the light. Sometimes it feels like not even God himself can penetrate those walls.

Nichols’ PTSD and other maladies did make incarceration onerous. The DC jail treated him just as shitty as it treats everyone else. And he was released because of it.

But that’s not a proof of a two-tier system of justice. That’s proof that America’s prisons suck, and that Jan6ers had more success in using that to get released than others.

Ultimately, though, Patel is claiming that one can get in your truck with guns in the back, drive to DC, threaten to drag people like Lindsey Graham and Chuck Grassley through the streets because they certified Joe Biden’s win, spray cops with toxic chemicals, and then call on the mob to grab more weapons to break into the Capitol, and not be assigned to pre-trial detention. That’s what Nichols did: He directly threatened Senators, both Republicans and Democrats. The notion that Nichols was improperly detained suggests one can assault cops after threatening the members of Congress they’re protecting with impunity.

And that’s what the aspiring FBI Director has said: that people can threaten to assault the very people who are rushing to confirm him with impunity.

Share this entry

After Yesterday’s DOJ Purge, Pam Bondi Cannot Fulfill Promises Made at Her Confirmation Hearing

/22 Comments/in , /by

Among the many things that happened in the ongoing DOJ purge was the reassignment of DOJ’s top career official, Brad Weinsheimer, to Trump’s sanctuary cities task force.

The department’s most senior career official, a well-respected department employee responsible for some of the most sensitive cases, was reassigned to a much less powerful post.

Were that official, Bradley Weinsheimer, to remain as the associate deputy attorney general, he would have handled critical questions about possible recusals — a thorny issue for a department that will soon be run by a number of Mr. Trump’s former lawyers.

[snip]

Like many of the other officials who have received transfer emails, Mr. Weinsheimer has been given the option of moving to the department’s sanctuary cities task force — an offer seen by some in the same situation as an effort to force them into quitting.

Mr. Weinsheimer, a respected veteran of the department for three decades, played a critical role under multiple administrations, often acting as a critical arbiter of ethical issues or interactions that required a neutral referee.

He was appointed to his current role on an interim basis by Attorney General Jeff Sessions in July 2018 during Mr. Trump’s first term, a move that was made permanent by one of his successors, William P. Barr.

Mr. Weinsheimer also served four years in the department’s Office of Professional Responsibility, which investigates complaints about prosecutors. An email to his government account was not immediately returned.

I’ve written about the key role Weinsheimer has played here.

In response to a question from Dick Durbin about her lobbying for Qatar (which she did not disclose as a potential conflict to the committee),

If there are any conflicts with anyone I represented in private practice, I would consult with the career ethics officials within the department and make the appropriate decision.

When Durbin asked if she would face a conflict with private prison contractor GEO, Bondi again said she would “consult with the career ethics officials within the Department of Justice and make the appropriate decision.”

But now the DOJ purge has made that impossible. Weinsheimer will be stuck prosecuting Chicago officials somewhere, and someone hand selected will take his spot.

In Bondi’s case, it won’t matter. She is, at least, qualified for the job, unlike so many of Trump’s other nominees.

But a key promise she made in her confirmation hearing just became meaningless.

Update: Fixed my typo to state correctly that it will be impossible for Bondi to keep her promise.

Share this entry

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

/23 Comments/in , /by

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.

Share this entry

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

/84 Comments/in , /by

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).

Share this entry

Jack Smith Asks for Three Weeks

/32 Comments/in , /by

Jack Smith just requested and got a consent motion to file a status report “or otherwise inform” Judge Tanya Chutkan of what they’re going to do with the January 6 case.

As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025. The Government respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy. By December 2, 2024, the Government will file a status report or otherwise inform the Court of the result of its deliberations. The Government has consulted with defense counsel, who do not object to this request.

If that “otherwise inform” is a report, it would be done in plenty of time for Dick Durbin to hold a hearing.

Share this entry

Arrest First, Learn about Right Wing Terrorism Later

/46 Comments/in , /by

In his Senate testimony the other day, FBI Director Chris Wray was not particularly cognizant of the granular details of the investigation into January 6. But he said something else, repeatedly, that bears consideration.

In response to a Dick Durbin question about whether he agrees that the Capitol attack involved white supremacists and other violent extremists, Wray responded by explaining that as the FBI arrests more and more people, it is developing a better understanding of the motivations behind those involved in the attack.

We’re seeing quite a number, as we’re building out the cases on the individuals we’ve arrested for the violence, quite a number of what we would call militia violent extremists, so we have a number who self-identify with, you know, the Proud Boys or the Oath Keepers, things like that. We also have a couple of instances where we’ve already identified individuals involved in the criminal behavior who we would put in the racially motivated extremists who advocate for what you would call sort of white supremacy. Some of those individuals, as well — one of the things that is happening is part of this is that as we build out the cases on the individuals when we arrest them for the violence we’re getting a richer and richer understanding of different people’s motivations.

Then, in response to a Chuck Grassley question about how the FBI will learn more about alleged left wing extremists (which Wray answered for anarchists), Wray said that by arresting these people, the FBI is learning about their tactics and tradecraft.

I think as with any domestic terrorism threat or, frankly, any counterterrorism threat more broadly, we’re also looking to develop more and better sources so we get more visibility and insight into the plans and intentions, tactic, tactics, procedures of any group of violent extremists. Another is to get better at how to navigate around some of the operational trade craft that they use. So, the more times, the more arrests we see and this is relevant both for the anarchist violent extremists and the racially motivated violent extremists, for example, the more arrests you see, that’s obviously good news that we’re arresting people that need to be arrested. There’s a whole ‘nother part of that is really important. The more arrests we make, the more from those cases we learn about who else their contacts are, what their tactics are, what their strategies are, et cetera. And that makes us smarter, better able to get in front of the threat going forward.

Finally, when Amy Klobuchar asked if the attack was planned and coordinated, Wray first responded that there were aspects that had been planned. Then, in response to a specific question about the Proud Boys’ coordination, Wray explained that the FBI is escalating charges after initial arrests based on what they learn subsequent to the initial arrest.

There have been a growing number of charges as we continue to build out the investigation, either individuals who are now starting to get arrested involving charges that involve more things like planning and coordination or in some instances individuals who were charged with more simple offenses, but now we’re superseding as we build out more of an understanding of what people were involved in. And there were clearly some individuals involved, which I would consider the most dangerous, the most serious cases among the group, who did have plans and intentions and some level of coordination.

None of this is surprising. It has been apparent from the court filings in the investigation.

But the significance of it is worth considering. The FBI blew it in advance of the attack for reasons that have yet to be confirmed but at least seem to arise from an unwillingness to see right wing terrorism being planned in plain sight. But, as I’ve repeatedly said, the nature of the attack is such that every single person who entered the Capitol and many of those who remained outside, physically fighting cops, committed a crime. And so, based on those trespass crimes, the FBI is arresting a lot of people. Because that’s the way the investigation has rolled out — and because, for every single trespass defendant, the record of what they said about their actions in advance make the difference between getting charged for obstructing the vote count or not — it means the FBI arrests people before they’ve done a lot of investigation they otherwise might do before an arrest. For better and worse, that means that the FBI is arresting people and then conducting intrusive collection on them, starting with their cell phone, even for people who seem to be just trespass defendants. That further means that the FBI will get access to communications that will support conspiracy charges when they otherwise would have a difficult time making such charges without a domestic terrorism statute.

There are real problems with this approach — Oath Keeper affiliate Jon Ryan Schaffer moved to dismiss the charges against him because DOJ has left him in an Indiana jail for 48 days without obtaining an indictment. For existing networks that aren’t recognizably a militia, I’m fairly certain the FBI is not seeing associations until after initial detention bids have been lost. Prosecutors have had to backtrack on claims with some notable defendants (such as Ethan Nordean, who got sent released to home confinement as a result).

But it means the FBI will obtain a far more detailed understanding of some of these people than they otherwise would have been able to get. And as it does so, it is seeing the networks of conspiracy that they otherwise might not have.

Share this entry

Trump’s Role in a Seditious Conspiracy Won’t Go Away with an Impeachment Vote

/76 Comments/in , , /by

There’s a conventional wisdom about the Donald Trump’s second impeachment trial, scheduled to start in ten days. WaPo predicts that impeachment will leave no more than a “bitter aftertaste.”

The Senate is hurtling toward an impeachment trial that will accomplish almost nothing by design and likely leave everyone with a bitter aftertaste.

Democratic voters will be furious that GOP senators refused to hold former president Donald Trump accountable for his role in encouraging supporters to march to the Capitol on Jan. 6. Republicans will be upset that congressional Democrats went through with an impeachment trial three weeks after Trump left the White House.

And independent voters, more focused on the health and economic crises fueled by the coronavirus pandemic, will wonder why Congress prioritized an impeachment process at all.

Perhaps most telling, WaPo describes Trump’s role as “encouraging” his supporters to march to the Capitol.

It’s true the word, “encouraged” appears in the article of impeachment against Trump.

He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘‘if you don’t fight like hell you’re not going to have a country anymore’’. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. [my emphasis]

But that description skips the “foreseeably result[ing]” in the interruption of the certification of the vote, the threats to Members of Congress, the deadly sedition that are also included in the article of impeachment.

Moreover, it ignores the other part of the article of impeachment, Trump’s other efforts to subvert democracy (the article describes his January 2 call to Brad Raffensberger explicitly), to say nothing of the description of Trump as a threat to national security.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.

[snip]

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

That’s a notable oversight, particularly given the — inexplicable — claim from ascendant Senate Judiciary Committee Chair Dick Durbin that we may never learn the full extent of Trump’s role in the coup attempt.

Sen. Richard J. Durbin (D-Ill.), the incoming chairman, said he would leave procedural questions up to the House managers.“I’m waiting to hear what their proposal is, but for us to suggest a trial strategy for the House managers, I don’t think that’s our job,” Durbin said.

So, instead, the Senate will rush through a trial in which the only evidence likely to be presented will be the stuff that senators themselves already lived, video clips of rioters breaking into the Capitol as senators fled through underground tunnels to their secure location.

Senators will likely not even attempt to answer the fundamental questions of every impeachment trial — what did the president know and when did he know it?

“It will be surprising to me if we ever know the answers to that,” Durbin said.

It may be true that impeachment managers will restrict themselves to the public record, though even that might include testimony from Raffensperger and evidence collected as part of the prosecution of insurrectionists. Q-Shaman Jacob Chansley even says he’d be willing to testify.

Lawyer Albert Watkins said he hasn’t spoken to any member in the Senate since announcing his offer to have Jacob Chansley testify at Trump’s trial, which is scheduled to begin the week of Feb. 8. Watkins said it’s important for senators to hear the voice of someone who was incited by Trump.

Watkins said his client was previously “horrendously smitten” by Trump but now feels let down after Trump’s refusal to grant Chansley and others who participated in the insurrection a pardon. “He felt like he was betrayed by the president,” Watkins said.

The words of Trump supporters who are accused of participating in the riot may end up being used against him in the impeachment trial. Chansley and at least four others people who are facing federal charges stemming from the riot have suggested they were taking orders from Trump.

If insurrectionists were to testify in person, the attendant security of orange jumpsuits and leg manacles might provide some sobering visuals (though COVID and real security concerns almost certainly rules that out).

But it seems foolish for any Senator to assume that the vote they’ll cast in a few weeks will make this thing go away forever.

That’s not even true for their Ukraine impeachment votes. Yesterday, Ukraine announced (much to Lev Parnas’ glee that Rudy Giuliani finally got Ukraine to announce an investigation) that it is launching a criminal probe into those — inside and outside Ukraine — who attempted to interfere in the 2020 election.

Andriy Yermak, the head of the office of Ukrainian President Volodymyr Zelenskiy, said on January 28 that Ukraine would do everything in its power to bring to justice forces within the country and outside it who attempted to damage relations between Ukraine and the United States.

“The State Bureau of Investigation has opened a criminal case,” Yermak was quoted as saying in an interview to the Ukrainian news outlet NV that was posted on the presidential website.

“The investigation is under way, and we are waiting for its results. The investigation must answer a lot of questions,” Yermak added.

Without anyone in the United States lifting a finger, then, Ukraine may provide damning new evidence about Trump’s attempt to coerce assistance on his “perfect phone call” with Volodymyr Zelensky that will make GOP negligence during the last impeachment more damning.

And in the case of the January 6 insurrection, DOJ has already mapped out a conspiracy charge that Trump could easily be charged under as well.

PURPOSE OF THE CONSPIRACY

18. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

MANNER AND MEANS

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

Meanwhile, Acting DC US Attorney Michael Sherwin has repeatedly refused to rule out incitement charges. Indeed, I’ve argued that DOJ almost certainly will need to incorporate at least Mike Flynn, if not Trump himself, in their description of the crimes of January 6, if only to distinguish the events of that day from other protected First Amendment activity — and at least some prosecutors in DC closer to the overall investigation seem to be doing that.

There’s no guarantee that Merrick Garland’s DOJ will have the courage to pursue Trump’s role in this (though thus far, Bill Barr appointee Michael Sherwin has not shied from such an investigation, and if he oversaw such a decision it would mitigate the political blowback). There’s no sign, yet, that DOJ has identified how the coup attempt tied into Rudy’s attempts to delay the certification.

But no Senator serving as juror in this impeachment should assume the investigation won’t, inevitably, disclose the machinations that tied Trump’s efforts to stay in office to the death and destruction on January 6. Indeed, there’s no guarantee that the actions of key jurors — like Josh Hawley and Ted Cruz for inciting the mob, Tommy Tuberville for his direct coordination with Rudy, and Lindsey Graham for his own efforts to throw out votes in Georgia and his meeting with accused insurrectionist Joe Biggs — won’t ultimately be incorporated into the larger conspiracy.

And so while it may be easy for lazy political journalism to spout conventional wisdom about everyone wanting to move on, this time around it is as likely as not that the votes cast next month will age poorly as the investigation into how Trump’s action ties to the death and destruction continues.

Share this entry