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Lessons from Red States on How to Push Back

“Ode to Ella Baker” by Lisa McLymont (Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0)

The comments on Marcy’s post yesterday telling folks to go stare at the ocean to get their heads in a better place, instead of becoming paralyzed and stuck in the face of last weeks election, make it clear that she struck a nerve with how folks are feeling 10 days after the election. I’ve had a bunch of face-to-face conversations with friends and parishioners on both sides of the Missouri/Kansas state line, encouraging much the same kind of self-care. But once your head is clear, then what?

Why, then it’s time for some good troublemaking, and if you want to know about making good trouble while at a serious political disadvantage, let me tell you a couple of stories from ruby red Missouri and her not-quite-so-ruby-red sister Kansas.

Back in 2019, the Kansas Supreme Court ruled that the state constitution’s declaration of fundamental rights includes the rights of women to control their own bodies, including the right to an abortion:

We conclude that, through the language in section 1, the state’s founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.

Included in that limited category is the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental. Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

Predictably, the GOP’s evangelical right wing in Kansas went nuts. After whining about the state Supremes, they got to work to overturn this opinion by a constitutional amendment. They wrote their amendment very carefully, got all the necessary signatures, and made the political decision to put it on the August 2022 primary election ballot. That choice presumed that this would make it easier to pass, as primary elections tend to draw only the hard-core voters, which they thought would work in their favor.

To borrow a phrase, they chose poorly.

While everyone was preparing for that election, SCOTUS handed down the Dobbs opinion. The wingnuts cheered, and progressives wailed. But the progressives in Kansas did more than whine and whinge.

Young people, particularly young women in Lawrence (U of KS), Manhattan (K State), Wichita (Wichita St), and the KC suburbs of metro KC got to work. First, they recruited other young people, registered them in huge numbers, and got them fired up enough to get their friends to register and then fired up enough to actually turn out to vote. Second, and at least as important, the local KS folks driving the resistance convinced all the usual national groups that the language to use to fight this battle was not the language of women’s rights, but the language of choice in health care decision-making. “Do you really want bureaucrats in Topeka getting between you and your doctor?”

That language resonated, because the local folks knew their neighbors and the national folks trusted the local activists. I had countless conversations with longtime Kansas republicans, quoting it back to me approvingly as they told me of their decision to vote no and defeat the amendment. And the result wasn’t even close – the amendment went down by roughly 60-40 margins. The local reaction was amazing:

“You guys, we did it,” said Rachel Sweet, campaign manager for Kansans for Constitutional Freedom, as she addressed a crowd of abortion-rights supporters at a watch party in Overland Park. “We blocked this amendment. Can you believe it?”

[snip]

Voters showed up in unforeseen numbers in urban areas of the state, while rural areas underperformed compared with turnout in the presidential race two years ago.“From the moment lawmakers put this on a primary ballot, we knew this was going to be an uphill battle, but we did not despair,” Sweet said. “We put in the work and these numbers speak for themself.”

Dawn Rattan, who attended the watch party in Overland Park, said the defeat of the amendment shows that reproductive health care is an issue that crosses party lines, “and people everywhere want women to have a choice.” She was moved to tears when the result was announced.

“I was so scared,” Rattan said. “I was so worried that it was going to be really close, and this is just so decisive, it’s not even close.

The activists in Kansas were as angry as anyone else about Dobbs, and they didn’t let feelings of impotence about the Supreme Court paralyze them and keep them from working on the local level. Instead of crying about places where they couldn’t make a difference, they found a place where they *could* make a difference. And then they worked their butts off to make their state a marginally safer place to be a woman of reproductive age.

Another story, from across the state line . . .

As COVID was raging in Missouri, Eric Schmitt — then the MO Attorney General — had a rather unique approach to his job. He had his eye on the 2022 Senate race where he would be up against a couple of well-funded primary opponents, and he was at a distinct financial disadvantage. In early 2021, he realized that every time he announced that his office intended to sue someone over a mask mandate or other COVID health regulation, his campaign fundraising went up. A lot. He didn’t even have to actually file the lawsuits, though he did file some. The key thing is that just making the announcement on Twitter brought in contributions by the truckload. So he went all in on these announcements and lawsuits, surprising a number of his former colleagues in the state legislature. A friend with connections in Jefferson City shared a couple of conversations with Republican legislators who said some version of “Sure, he’s always been conservative, but always a quiet, get-the-job-done kind of guy. I never would have guessed he’d be threatening lawsuits like this.” But it worked, and his poll numbers began to rise.

In late 2021, Schmitt made a big deal about twisting a case in St. Louis county involving the state’s Department of Health and Senior Services into a precedent giving him the power to prohibit schools from enforcing any mask mandates. He sent cease and desist letters to school districts with such mandates, threatening a lawsuit if they did not rescind their policies. Some did just that, but others did not, including the Lee’s Summit Reorganized District #7 in the KC suburbs. Instead, the lawyer for the LSR7 district responded to Schmitt’s letter with one of his own, announcing their intention to file a countersuit, filing a huge shot across Schmitt’s bow.

The letter is a real gem, gutting Schmitt’s claims on numerous grounds. Most damning, from my point of view, was this from the end:

We don’t need to rely on just these general statutes to demonstrate the Attorney General’s lack of authority in this matter. Consider what the Legislature has authorized school districts to do in the face of a pandemic. Under RSMo. § 167.191:

It is unlawful for any child to attend any of the public schools of this state while afflicted with any contagious or infectious disease, or while liable to transmit such disease after having been exposed to it. For the purpose of determining the diseased condition, or the liability of transmitting the disease, the teacher or board of directors may require any child to be examined by a physician, and exclude the child from school so long as there is any liability of such disease being transmitted by the pupil.

This law speaks for itself. Not only may a school district exclude from school a child who has COVID; it may exclude from school a child who has been exposed to COVID and who is liable to transmit it pending a medical test or examination to confirm that the child is not afflicted with the disease.

In short, the duly elected Lee’s Summit R-7 Board of Education will not abandon its statutory duty to govern the operations of the school district. If you follow through on your threat to sue the District, we will defend that suit vigorously, and pursue all remedies available to the District resulting from any suit that violates Missouri Supreme Court Rule 55.03, which requires among other things that any claim “is not presented or maintained for any improper purpose” and that the claim “is warranted by existing law.”

As strongly worded as this letter is, I have a hunch that the first draft of the letter was much, much stronger.

Realizing he would lose, Schmitt then dropped his suit and asked that the district do the same. The district refused, saying they wanted to pursue the case so that a firm line would be drawn to prohibit any future attempts by Schmitt or a future AG to illegally try to usurp power granted to the schools over some other issue. By the time that suit was heard, Schmitt was gone and the new AG — Andrew Bailey (lately in the news as being on Trump’s shortlist to be nominated to be the US Attorney General) — had taken office. The ruling was not just in the school’s favor, but exactly the kind of smack-down the district lawyer predicted. From the KC Star:

Judge Marco Roldan, in his 18-page ruling, found that Schmitt, a Republican who was elected to the U.S. Senate last year after four years as state attorney general, did not follow Missouri law when he ordered the Lee’s Summit School District to stop enforcing its COVID-19 mitigation efforts in 2021.

“There exists no Missouri law allowing the Attorney General to involve himself in a School District’s efforts to manage COVID-19 or other disease within its schools,” Roldan wrote in his ruling. The ruling offers a scathing rebuke of Schmitt, who had sued Lee’s Summit and dozens of other school districts at the height of the pandemic.

Schmitt regularly touted the suits on social media and used them to elevate himself in his Senate campaign.

“Parents and students followed the Attorney General’s lead, leading to even greater confusion than the pandemic had already caused,” Roldan wrote.

What matters most, here, is not “the courts solved this” but the fact that this school district — in a relatively evenly divided blue/red community — chose to stand up for themselves and their community. Of the 47 districts to receive Schmitt’s cease and desist letter, this was the only district to push back and get it on the record that the AG was way out of bounds trying to dictate to schools how they are to protect the health of students, teachers, and other staff.

In Missouri, we’ve spent years coming to grips with Trumpist nonsense at the state level where the GOP has held supermajorities in both houses of the legislature as well as a firm grip on executive branch offices. Folks in KC and St. Louis have been fighting the wingnuts in various ways, including exploiting differences between conservative GOP legislators and their over-the-top MAGA colleagues. The Dems in the legislature have been very good at offering selective support to the conservatives in order to outflank the MAGA extremists. Some of the things enacted have not been great, but they forestalled much much worse stuff. They have also been very good at using the courts — even with conservative judges — to stop the “But I won and I want to . . .” whinging from the MAGA folks.

[If you are a regular reader of Emptywheel, the mention of the Lee’s Summit School District might ring a faint bell. “Where have I heard that before? Oh, yes, now I remember . . . “]

In both Kansas and Missouri, local activists have been fighting MAGA on the local level for at least 4 years. Progressives in both states had hoped that things would be improving with a Harris victory, but absent that we are well acquainted with how to fight back, and how to win. Did you hear that Missouri just overturned the harshest state abortion law by putting reproductive rights in the state constitution — on the same night that Trump was voted back into the White House?

It can be done. I wish it wasn’t necessary, but last week’s election made it clear that the good troublemaking must go on.

It can be done. It can be done. It can be done. Lather, rinse, repeat.

Young folks and old folks, office holders and informed ordinary citizens, folks of privilege and folks from the margins . . . making good trouble is work for us all.  And if any other red state folks here have stories to share, please do. We are strengthened by hearing of victories, and we can learn from each other about how to push back in our neighborhoods.

Hunter Biden[‘s “Laptop”] Goes to SCOTUS: How Judge Doughty Helped China and Iran Attack the US

Hunter Biden is going to SCOTUS!!!

Or rather, the “Hunter Biden” “laptop” is.

Last Friday, SCOTUS granted a stay and certiori for DOJ’s appeal of the Missouri v. Biden case, a right wing lawsuit claiming that the government has forced social media companies to “censor” right wingers (Terry Doughty opinion; 5th Circuit Opinion). While much of the lawsuit focuses on efforts, including those starting under a guy named Trump, to help social media companies limit COVID-related disinformation (Surgeon General Vivek Murthy is the lead appellant), a key part of the claim that the government has coerced social media companies pertains to the FBI.

The Fifth Circuit opinion upholding parts of Judge Doughty’s opinion admitted that, “we cannot say that the FBI’s messages were plainly threatening in tone or manner” but suggested nevertheless that they “’might be inherently coercive if sent by . . . [a] law enforcement officer’” anyway.

Because the people pushing this suit, including now-Missouri Senator Eric Schmitt and now-Louisiana Governor-elect Jeff Landry, are nuts, the “Hunter Biden” “laptop” has come to embody that coercion. The Fifth Circuit adopted that focus (and several inaccurate claims about it) as well. And, in turn, Sam Alito included that focus, citing the Fifth Circuit, in his snotty dissent.

This case began when two States, Missouri and Louisiana, and various private parties filed suit alleging that popular social media companies had either blocked their use of the companies’ platforms or had downgraded their posts on a host of controversial subjects, including “the COVID–19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story.” Id., at *1. According to the plaintiffs, Federal Government officials “were the ones pulling the strings,” that is, these officials “‘coerced, threatened, and pressured [the] social-media platforms to censor [them].’”

This argument, as currently framed, is about whether Judge Doughty properly enjoined the FBI from certain kinds of contacts with social media companies because of the “Hunter Biden” “laptop.”

The Injunction

The injunction on the FBI, imposed largely because of right wing beliefs about the “Hunter Biden” “laptop,” may also explain why three Republican justices granted cert. The prohibition on certain kind of FBI contacts with social media companies may be among the most urgent injury the US government faces under the injunction. That’s partly because Judge Doughty specifically enjoined Elvis Chan, the Assistant Special Agent in Charge of cybersecurity investigations out of San Francisco, and so a key person involved in preventing and responding to cyberattacks targeting or using the infrastructure of social media companies located in Silicon Valley.

Alito’s dissent claims that DOJ only cared about Joe Biden’s bully pulpit, which is not included in the injunction. But in its appeal, DOJ noted that, as written, the injunction might lead the FBI to hesitate before alerting social media companies to potentially harmful content.

And given the court’s suggestion that any request from a law-enforcement agency is inherently coercive, see id. at 232a233a, the FBI would likewise need to tread carefully in its interactions with social-media companies, potentially eschewing communications that protect national security, public safety, or the security of federal elections. For example, particularly in the early stages of an investigation, law-enforcement officials may be uncertain whether a social-media post involves unprotected criminal activity (such as a true threat). But the injunction leaves them guessing what quantum of certainty they must possess before they can inform social-media companies about the post, potentially leading to disastrous delays.

To be sure, Judge Doughty’s injunction included a bunch of carve outs that, right wingers like Alito claim, ensures their efforts to force Twitter to publish Hunter Biden’s dick pics don’t make the country less safe. The carve outs are:

(1) informing social-media companies of postings involving criminal activity or criminal conspiracies;

(2) contacting and/or notifying social-media companies of national security threats, extortion, or other threats posted on its platform;

(3) contacting and/or notifying social-media companies about criminal efforts to suppress voting, to provide illegal campaign contributions, of cyber-attacks against election infrastructure, or foreign attempts to influence elections;

(4) informing social-media companies of threats that threaten the public safety or security of the United States;

(5) exercising permissible public government speech promoting government policies or views on matters of public concern;

(6) informing social-media companies of postings intending to mislead voters about voting requirements and procedures;

(7) informing or communicating with social-media companies in an effort to detect, prevent, or mitigate malicious cyber activity;

(8) communicating with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution. [my emphasis]

The carve outs — to the extent that they apply to the FBI, as most by definition do — actually demonstrate the problem with this ruling (and may explain the stakes of the focus on the “Hunter Biden” “laptop”).

Five kinds of interaction with social media

To see why, it’s useful to understand what the plaintiffs actually complained about (which largely tracks Matt Taibbi’s misrepresentations in his Twitter Files propaganda), which are shown in the unshaded rows in the table below.

CISA

First, there’s the Cybersecurity & Infrastructure Security Agency. It was set up within DHS specifically to provide an alternative to the FBI, a non-law enforcement agency that could help protect critical infrastructure, including elections, from cyber as well as brick-and-mortar threats. In addition to its efforts to combat disinformation about elections, for example, CISA has also helped some states harden their election systems against hacking attempts, run active shooter drills with election officials, and helped state election officials recover after natural disasters.

As part of its election role, though, CISA aspired to provide authoritative information to election partners (including social media companies) about both intentional and unintentional incorrect information about elections. The example former CISA Director Chris Krebs provided to the January 6 Committee was an Iranian campaign, active in the days after the Hunter Biden story, to pose as members of the Proud Boys and intimidate people of color not to vote. But in the same way that CISA would help protect pipelines against international or domestic attackers, CISA would track and provide official debunking to incorrect information from both international and domestic sources. Republicans especially hate CISA because Krebs affirmed that the 2020 election had been conducted securely (after which Trump summarily fired him by Tweet). But they also object to the “switchboarding” role that CISA has served, getting reports on incorrect information (which of course could include domestic actors) from election officials, along with corrections, and sharing them with social media companies.

At first, the Fifth Circuit reversed Doughty’s injunction on CISA, but then arbitrarily added them back in, a flaky move that may have contributed to SCOTUS’ decision to review the Fifth Circuit’s actions.

Election Command Post

Then there’s the intervention that might be the most controversial, but which in this litigation got replaced by the right wing obsession with the “Hunter Biden” “laptop.” In the days immediately preceding the 2020 election, FBI agents passed on social media identifiers that misstated the time, place, or means of voting. Per the testimony of Agent Chan, these had been vetted by Public Integrity lawyers at Bill Barr’s DOJ and deemed to be “criminal in nature.” This is the primary instance where the FBI shared information about US persons that might be taken down. It’s also a use case that Matt Taibbi wildly misrepresented, both as to the genesis of the data and the potential existence of ongoing criminal investigations into the activity. And it’s one instance where, under Doughty’s carve out #6, you could see the FBI hesitating before sharing: because while the identifiers in question did mislead about “voting requirements and procedures,” the FBI would’t be able to establish intent without more work (including more intrusive legal process on the accounts). So there’d be no way for the FBI to flag these accounts until it had done more work to determine intent, after which the damage would have been done. This should be where discussions at SCOTUS focus. But they’re not. Instead, Alito is talking about the “Hunter Biden” “laptop.”

FITF: Strategic and Tactical

Finally, there is the FBI’s Foreign Influence Task Force, now led by Laura Dehmlow (the other FBI official specifically enjoined; in 2020 she was the Unit Chief of the Chinese group at FITF). FITF aims to combat malign foreign influence operations, defined as efforts by foreign actors, hiding their foreign identity, to target those inside the US. While such efforts can target elections, they can also be part of traditional espionage and hacking efforts or attempts by authoritarian governments to crack down on US-based dissidents.

FITF interacts (or did, before the injunction) with social media companies in two ways. They hold general meetings — often attended by Chan and Dehmlow — to discuss general tips and techniques about foreign actors, what they called “strategic” information sharing. And they hold one-on-one meetings with social media platforms to discuss specific activity on their platforms — what the FBI calls “tactical.” The leading source of such tactical information, per Dehmlow’s testimony to the House Judiciary Committee, is “another government agency,” often classified information downgraded to share with partners, though Chan described that FBI agents involved in specific counterintelligence or criminal investigations might also share information.

We know that the plaintiffs in this lawsuit misrepresented this sharing. In addition to general descriptions of this information sharing from depositions, we have rather specific evidence about the subject of these FITF briefings in 2020. LinkedIn emails that Doughty claims to rely on, for example, show that the August 2020 agenda for the FITF meeting covered the Internet Research Agency — the Internet trolls that Republicans like to claim were the only way Russia has interfered in elections — but also described a Russian software and influence campaign targeting Ukraine. It shows a specific briefing on APT31, which Mandiant describes as, “a China-nexus cyber espionage actor focused on obtaining information that can provide the Chinese government and state-owned enterprises with political, economic, and military advantages.” That briefing also covered Iran, Venezuela, and North Korea.

While the September 2020 briefing reviewed a fake right wing news site run by IRA (the FBI had just targeted a similar left wing fake news site as well), it discussed three things pertaining to Iran: some influence campaign (as noted, in October CISA would share details of a very sophisticated campaign in 2020 hijacking Proud Boy identities to discourage voters of color), a recent indictment of hackers with ties to IRGC who had targeted (among other things) an American satellite company, and a toolset of some Iranian hackers.

The agenda for the October meeting was not as detailed as the August and. September ones, but a follow-up shows that one item pertained to a Global (meaning something other than Chinese or Russian) campaign targeting Trump, Republicans, and Biden.

This is the kind of information sharing that Judge Doughty’s injunction threatens to end: efforts (among other things) to prevent Iranian and Chinese hacking of US technology companies.

While the subjects of FITF briefing might include Americans — such as the freelancers paid by the IRA’s fake news site or the Trump associates, like Roger Stone and Hannity, who engaged with fake IRA Twitter accounts — they are targeted at selectors that the FBI has “high confidence” are foreigners pretending to be American.

Criminal Process

Thanks to Matt Taibbi’s propaganda, right wingers have completely ignored the role of criminal process in all this, even though Agent Chan repeatedly described in his deposition that, “The majority of my role is dealing with cyber investigations.” There is clear overlap between the things right wingers complain about and known criminal investigations. As I have noted, for example, right in the middle of the 2020 pre-election period, DOJ rolled out a GRU indictment which included the 2017 hack-and-leak operation targeting Emmanuel Macron, in which key members of the far right, including Jack Posobiec, were involved.

Chan described several times that his team not only investigated part of the 2016 hack, but still had an active investigation into those actors. That’s important not only because he would have firsthand knowledge of the kinds of attribution social media companies (and Google and Microsoft) had in 2016, but for another reason: On October 19, 2020, DOJ indicted a bunch of GRU hackers, including one charged in the 2016 hack-and-leak campaign, for a variety of additional hacks, including the hack-and-leak targeting Emmanuel Macron. The Macron campaign, specifically, included both Google and Twitter components. So in the very same weeks when — right wingers complain — Elvis Chan was in close contact with Twitter about the ongoing election, he or his subordinates were likely working with prosecutors in Pittsburgh on an indictment implicating both Google and Twitter.

Emmanuel Macron is not mentioned in the Chan deposition.

The investigation into Douglass Mackey, for intentional disinformation targeting Blacks and Latinos regarding the means of voting, would have been active in this period as well. Those disinformation efforts were substantially orchestrated in Twitter DM threads.

While Agent Chan likely had no involvement in the Mackey case, he has investigated GRU for years, so likely would have been aware of the investigative steps leading up to the 2020 indictment. The press release for that indictment specifically commended the cooperation of Google, Facebook, and Twitter in the investigation.

In other words, not only did FBI provide notice of disinformation from US persons pertaining to content vetted by DOJ attorneys as potential crimes, but some of the contacts FBI had with Twitter in the period would involve far right wing involvement with actual crimes.

Rudy Giuliani and Steve Bannon and FITF

The right wing has focused on FITF rather than other aspects of their complaint because, at an FITF briefing with Twitter shortly after the NYPost story on the “Hunter Biden” “laptop,” someone at Twitter asked about it and an FBI person present said, “the laptop is real,” and then, in a briefing with Facebook, someone asked about it and Dehmlow responded “no comment.” Based on that exchange (and three erroneous details), Judge Doughty finds great fault with the FBI.

The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling. The FBI had the laptop in their possession since December 2019 and had warned social-media companies to look out for a “hack and dump” operation by the Russians prior to the 2020 election. Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused to comment, resulting in the social-media companies’suppression of the story. As a result, millions of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, the FBI was included in Industry meetings and bilateral meetings, received and forwarded alleged misinformation to social-media companies, and actually mislead [sic] social-media companies in regard to the Hunter Biden laptop story. The Court finds this evidence demonstrative of significant encouragement by the FBI Defendants.

On top of the three errors Doughty makes (which I’ll get to), there are several problems here. First, confirming that the FBI knew the laptop was real, as the FBI did, was a privacy violation! Hunter Biden is the one who has complaint for the disclosure of an ongoing criminal investigation (which is, according to Agent Chan, why Dehmlow responded no comment to the Facebook question), not the right wing.

More importantly, based on what is publicly known, Hunter Biden would normally not be included FITF briefing. He’s a US citizen. While several of his international relationships (with Burisma, with Romania, and with CEFC) were being investigated as potential FARA violations in 2020 and after, with the important exception of a slight delay in Burisma’s announcement of his appointment in 2014, Hunter’s ties to such entities were not covert. Nor is there any allegation he disseminated false information about those entities online, especially on Facebook and Twitter. CEFC might have been the subject of FITF focus, but more for its covert role in recruiting James Woolsey.

One person who might be included in FITF briefings in summer 2020, though, is Guo Wengui. Unlike Hunter Biden, he’s not a US citizen; he is (or was, before his indictment in March) present in the US as an asylum seeker. And as public reports from July 2020 described, the source of funding for his propaganda efforts was under FBI investigation, precisely the kind of covert relationship of interest to FITF. That reporting suggested that Guo might secretly be funded by the Chinese state to track Chinese dissidents, something Dehmlow has explicitly included within FITF’s mandate. In a filing in the current investigation against Guo, SDNY has pointed to evidence obtained in a more recent search of Guo’s property pertaining to a 2018 meeting between the UAE and China. In other words, in 2020, the FBI was actively investigating whether China and/or the Emirates funded propaganda put out by Guo, with Steve Bannon’s involvement, precisely the kind of secret foreign backing of influence campaigns that FITF focuses on. So while Hunter Biden shouldn’t have come up as a subject of FITF briefing, Bannon’s partnership with Guo might have.

We don’t know whether that happened. But one person whose propaganda campaign definitely was a subject of FITF briefing is Andrii Derkach. Between the August and September face-to-face meetings, on September 10, 2020, a Unit Chief (presumably the Russian Unit Chief) at FITF  sent a link to LinkedIn noting Treasury’s sanctioning of Derkach, explaining, “just want to let you know about someone we have discussed in previous briefings.” Obviously, the link was public, as was a WaPo story that same day tying Derkach to Rudy’s efforts to push criminal investigations related to Joe Biden. But the FBI sent the link, referencing back to prior discussions, to flag it for LinkedIn.

In other words, the far right is complaining that the FBI didn’t offer up details about an ongoing criminal investigation into Hunter Biden, but they’ve never complained that the FBI didn’t offer up details about a national security investigation into Steve Bannon’s propaganda partner (one who, subsequent reporting has confirmed, played a key role in altering and disseminating Hunter Biden dick pics). Nor have they complained that FBI didn’t offer up details about the counterintelligence investigation into the alleged Russian agent conducting an influence operation targeting Rudy at this meeting. Rudy and Bannon were named in the NYPost story in question, yet the right wing isn’t wailing that the FBI didn’t describe ongoing FBI investigations, investigations directly relevant to the mission of FITF, in the briefing after its release.

Doughty’s Three Errors

Which brings us, finally, to three errors that Doughty makes — at least one of which is already before SCOTUS — in sustaining his complaint that the FBI must be enjoined because they didn’t offer up more information about a criminal investigation into Hunter Biden.

First, in his opinion written in July, Doughty points to Yoel Roth’s 2020 FEC testimony, which is where Roth first explained that Twitter took down the initial NYPost link under its hack-and-leak policy.

(10) Yoel Roth (“Roth”), the then-Head of Site Integrity at Twitter, provided a formal declaration on December 17, 2020, to the Federal Election Commission containing a contemporaneous account of the “hack-leak-operations” at the meetings between the FBI, other natural-security agencies, and social-media platforms.405 Roth’s declaration stated:

Since 2018, I have had regular meetings with the Office of the Director of National Intelligence, the Department of Homeland Security, the FBI, and industry peers regarding election security. During these weekly meetings, the federal law enforcement agencies communicated that they expected “hack-and-leak” operations by state actors might occur during the period shortly before the 2020 presidential election, likely in October. I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social-media platforms, including Twitter. These expectations of hack-and-leak operations were discussed through 2020. I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden. 406 [emphasis original]

In his testimony, Agent Chan disputed the notion that that the FBI suggested a hack-and-leak would involve Hunter Biden, because Joe Biden’s son had not come up in meetings before the NYPost story he attended.

[I]n my estimation, we never discussed Hunter Biden specifically with Twitter. And so the way I read that is that there are hack-and-leak operations, and then at the time — at the time I believe he flagged one of the potential current events that were happening ahead of the elections.

That’s consistent with what Roth has said since, in House Oversight Testimony, clarifying that he heard the rumors about a hack-and-leak involving Hunter Biden from other social media companies, not the FBI.

I think it actually should have been two separate sentences. It is true that in meetings between industry and law enforcement, law enforcement discussed the possibility of a hack and leak campaign in the lead up to the election. And in one of those meetings, it was discussed, I believe, by another company that there was a possibility that that hack and leak could relate to Hunter Biden and Burisma. I don’t believe that perspective was shared by law enforcement. They didn’t endorse it. They didn’t provide that information in that.

But Doughty nevertheless relies on the outdated misinterpretation to blame the FBI for Twitter’s conclusions.

As noted, there’s no mention of one reason why this conclusion would be sound — the public reporting on Andrii Derkach, which was part of FITF briefing. Nor is there mention of the GRU hack of Burisma reported by a Silicon Valley InfoSec company earlier that year.

This lawsuit has thrived even after Agent Chan debunked one conspiracy theory about the social media’s throttling of the NYPost story, the false assumption that the FBI affirmatively told Twitter and Facebook that a hack-and-leak would involve Hunter Biden.

It has done so, in part, because of a truly bizarre — and erroneous — complaint from Doughty: That Chan and others at the FBI and CISA warned social media companies of hack-and-leak campaigns, like the GRU one of Macron indicted just days after the NYPost Hunter Biden story October 2020. Social media companies took the “Hunter Biden” “laptop” story down, the logic goes, because the FBI coerced them to change their moderation policies to prohibit publication of hacked materials.

In Doughty’s version, the social media companies responded to this pressure in 2020, just in time to use it to justify taking down the NYPost story.

Social-media platforms updated their policies in 2020 to provide that posting “hacked materials” would violate their policies. According to Chan, the impetus for these changes was the repeated concern about a 2016-style “hack-and-leak” operation.402 Although Chan denies that the FBI urged the social-media platforms to change their policies on hacked material, Chan did admit that the FBI repeatedly asked the social-media companies whether they had changed their policies with regard to hacked materials403 because the FBI wanted to know what the companies would do if they received such materials.404 [my emphasis]

In the Fifth Circuit’s telling, that change seems to date to 2022, two years after the “Hunter Biden” “laptop” story.

For example, right before the 2022 congressional election, the FBI tipped the platforms off to “hack and dump” operations from “statesponsored actors” that would spread misinformation through their sites. In another instance, they alerted the platforms to the activities and locations of “Russian troll farms.” The FBI apparently acquired this information from ongoing investigations.

Per their operations, the FBI monitored the platforms’ moderation policies, and asked for detailed assessments during their regular meetings. The platforms apparently changed their moderation policies in response to the FBI’s debriefs. For example, some platforms changed their “terms of service” to be able to tackle content that was tied to hacking operations. [my emphasis]

In fact, the Fifth Circuit builds most of its claim of FBI coercion on this change in terms of service (again, seemingly in 2022), which it ties to content take downs, the sole potential hack-and-leak example of which is that first article on the “Hunter Biden” “laptop.”

Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request. Considering the above, we conclude that the FBI coerced the platforms into moderating content. But, the FBI’s endeavors did not stop there.

We also find that the FBI likely significantly encouraged the platforms to moderate content by entangling itself in the platforms’ decision-making processes. Blum, 457 U.S. at 1008. For example, several platforms “adjusted” their moderation policies to capture “hack-and-leak” content after the FBI asked them to do so (and followed up on that request). Consequently, when the platforms subsequently moderated content that violated their newly modified terms of service (e.g., the results of hack-and-leaks), they did not do so via independent standards.

It’s a crazy enough argument on its face (especially the Fifth Circuit’s suggestion that a change in 2022 led to the throttling of a 2020 story). But it also gets the timing — and therefore the cause-and-effect — wrong. The actual change to Twitter’s policy, for example, was in March 2019, based off discussions before that. Either FBI planned their malicious coercion long before they got the laptop from JPMI, or the claim is utterly nonsensical.

DOJ called out this error in its SCOTUS response.

Similarly, respondents’ claim that the platforms “updated their policies in 2020” with respect to “‘hacked materials,’” such as “‘the laptop story,’” “after the FBI’s ‘impetus,’” Opp. 17, 19 (brackets and citations omitted), cannot be squared with the platforms’ own testimony that their actions with respect to the “laptop story” were based on policies adopted in 2018, C.A. ROA 18,498-18,499, 18,505.

In other words, the main claim that the Fifth Circuit made about coercion — which, again, was ultimately a claim about coercing social media companies to do something that prevented one story from going viral — got the timing and therefore any possible causality wrong.

Finally, there’s the source of Doughty’s claim of animus on the part of the FBI, his claim that they deliberately withheld information that (he imagines) would have led Facebook and Twitter to act differently.

The mention of “hack-and-leak” operations involving Hunter Biden is significant because the FBI previously received Hunter Biden’s laptop on December 9, 2019, and knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation. 408

Doughty bases this claim on a November 2, 2022 Miranda Devine (!!!) column. The column is, predictably, riddled with debunked propaganda, including the shoddy Intercept piece that kicked off this campaign, the lawsuit itself (making it a self-licking ice cream cone), and a preview of John Paul Mac Isaac’s then unpublished book (though not the line where an FBI agent told JPMI’s father, “You may be in possession of something you don’t own”).

The paragraph from which Doughty bases his claim that FBI “knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation” appears to be this one:

We know the FBI at the time was spying on Rudy Giuliani’s online cloud with a covert surveillance warrant. Therefore, it had access to his emails in August 2020 from computer store whistleblower John Paul Mac Isaac and to my text messages discussing when The Post would publish the story. It sure looks as if the FBI deliberately pre-censored a legitimate story for a political aim.

Of course, the paragraph doesn’t mention Russian disinformation, nor does JPMI’s role in the process rule out Russian disinformation (a point I laid out here).

Plus, the paragraph is factually wrong. Per failed redactions in a Lev Parnas filing and other filings in that Special Master docket, FBI obtained a warrant Rudy’s iCloud account and emails on November 4, 2019, before John Paul Mac Isaac was subpoenaed by the FBI, and nine months before JPMI reached out to Rudy. Rudy’s phones were seized with an April 21, 2021 warrant, long after the controversy in question (though at least several of those phones were corrupted). While it’s certainly likely that DOJ obtained a second warrant for Rudy’s emails after that, it would not have happened in 2020. In other words, there is no known legal process that obtained Rudy’s emails that would have included JPMI’s emails to him before the NYPost story came out.

Plus, JPMI’s emails to Rudy would only be in the scope of the known warrant against Rudy … if the laptop were part of a Ukranian effort to deal dirt to cause legal problems for Joe Biden and his family.

Devine may base her claim, at least in part, elsewhere. Her column also alludes to the disgruntled FBI agents who attacked Tim Thibault.

This year, whistleblowers have come forward to finger various FBI employees engaged in the cover-up. Timothy Thibault, the recently retired assistant special agent in charge of the FBI’s Washington, DC, field office, was the agency point man to manage Tony Bobulinski, Hunter’s business partner who went to the FBI with evidence of the Biden influence-peddling operation. Thibault allegedly ordered the investigation closed and has refused to cooperate with GOP members of the House Judiciary Committee.

This, too, is false. Thibault’s House Judiciary Committee interview reveals that his only involvement with the Tony Bobulinski interview was to address Bobulinski’s request to turn over just some of the material on some of his devices.

But Devine’s reliance on such disgruntled agents is interesting for another reason: because they are likely disgruntled at least partly because of warnings against the involvement of Steve Bannon associate Peter Schweizer in the Hunter Biden investigation. The disgruntled agents falsely claimed, elsewhere, that Thibault, on his own, shut down Schweizer as a source. Yet according to Thibault’s testimony, he did so only after two warnings. First, the lead FBI agent on the Hunter investigative team told Thibault that getting contents of the laptop from Schweizer, which they had already gotten, “could cause problems when you get to prosecution … and [] open doors for defense attorneys.” And shortly thereafter — so temporally in the same time period as the first NYPost story — FITF raised concerns about the Bannon associate. A week after the NYPost story, around October 21, FITF provided Thibault a classified briefing (from which they excluded the line FBI agents, in part because the daughter of one was posting related content on Daily Caller). That briefing described more context about FITF’s concerns.

In spite of all the obvious problems with Devine’s propaganda, it formed a key part of Doughty’s claim that FBI coercion, rather than an independent series of decisions about hosting potentially stolen content, resulted in the throttling of the first NYPost story.

And based on that shoddy case — based on the feverish conspiracy theories about the “Hunter Biden” “laptop” sustained by Eric Schmitt and Jeff Landry and Miranda Devine — Judge Doughty made it significantly riskier for Agent Chan and others to work with social media companies to do things like prevent Iranian hacks of US satellite companies.

“Dumb & silent we may be led, like sheep, to the Slaughter:” Elvis Chan, Hacks, the Klan, and the Twitter Files

In one of many false claims Michael Shellenberger made (see this thread for another) in his Twitter Files thread purporting to address Twitter’s handling of the “Hunter Biden” “laptop” (but which focused a lot on non-Twitter material on the “laptop”), he made this claim about the deposition of FBI Assistant Agent in Charge Elvis Chan.

Chan was interviewed as part of the lawsuit filed by Eric Schmitt before Schmitt was elected to the Senate. The suit alleges that the government has violated the First Amendment rights of Americans by pressuring social media companies to take down misinformation. The bolded language below, from an address by George Washington, appears in the first paragraph of Schmitt’s complaint.

if Men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind; reason is of no use to us—the freedom of Speech may be taken away—and, dumb & silent we may be led, like sheep, to the Slaughter. [my emphasis]

Shellenberger’s tweet is part of an argument that the FBI warned the social media companies specifically about Hunter Biden. Indeed, his tweet is premised on the claim that the FBI gave “warnings of a hack-and-leak operation relating to Hunter Biden.” [my emphasis]

In fact, though Hunter Biden came up in this deposition 36 times, Chan’s testimony was that Hunter Biden came up in just one briefing with social media companies, one in which someone from FBI’s Foreign Influence Task Force, Laura Dehmlow, refused to comment in response to a question from Facebook about the already-published NY Post story.

Q. BY MR. SAUER: Do you know that in 20– so you remember sometime in 2020 a Facebook analyst asked the FBI to comment on the status of the Hunter Biden investigation?

A. That’s correct.

Q. And you believe that this occurred after there had been, you know, a New York Post article about the contents of the laptop that you referred to — I think you referred to earlier you finding out about it that way, right?

A. Yeah, I only found out through news media. I have no internal knowledge of that investigation, and yeah, I believe that it was brought up after the news story had broke.

Q. And so the — what did the Facebook analyst ask Ms. Dehmlow? Did they ask, you know, “Hey, we have the story. Can you confirm it,” or what did they ask?

A. Yeah, they just — I can’t remember the exact question, but I believe the investigator asked if the FBI could provide any information about the Hunter Biden investigation.

Q. Did they refer to the laptop in particular that had been the subject of the news stories?

A. I can’t recall.

Q. And what did Ms. Dehmlow respond?

A. She said no comment. She said something to the effect that the FBI has no comment on this.

Q. Did she indicate why the FBI declined to comment?

A. Yes. It was because — at the time I do not believe that we had confirmed that it was an active — we had — at the time we had not confirmed that the FBI was actually investigating Hunter Biden. So she did not have the authority to say anything or to comment about it.

Q. Did she know at the time that the FBI had the laptop and that the contents had not been hacked?

MR. SUR: Objection; calls for speculation and gets into law enforcement privilege.

Q. BY MR. SAUER: To your knowledge?

A. I have no idea. I never asked her, and she never told me.

Q. Did Hunter Biden come up with any other social media platforms during 2020?

A. Not to my knowledge.

Q. Do you recall any mention of Hunter Biden at any meetings with any social media platforms?

A. No. It stood out because that Facebook meeting was the only one where an individual from one of the companies even asked about it.

Q. You’re confident that Hunter Biden did not come up at any other meetings between federal government officials and social media platforms in 2020?

A. I was confident that I was not a party to any meeting with social media companies where Hunter Biden was discussed outside of the one incident that I told you about.

Q. That was the one where it was a FITF Facebook meeting where the analyst asked Ms. Dehmlow and she refused to comment, correct?

A. That is correct. That is correct.

Note that Twitter Files propagandists often refer to Dehmlow’s actions in 2020 and describe that she was in charge of the entire FITF effort, but at the time she was only in charge of the China unit. That has the effect of falsely suggesting she and all the other FITF warnings were focused primarily on Russia (Iran is similarly neglected from the focus of the Twitter Files propagandists).

In his deposition, Chan takes issue with former Twitter head of Trust and Safety Yoel Roth’s use, in a declaration explaining why Twitter took down links to the NY Post article, of the word, “expectation,” to describe FBI’s warnings to be on the lookout for hack-and-leak operations and notes that the FBI would have been the only federal law enforcement agency who offered such warnings; CISA, which organized other meetings with the FBI, is not a law enforcement agency (though the Twitter File propagandists have at times claimed it is). He also has to correct Schmitt’s lawyer when he treats Roth’s reference to the Infosec community’s response to the NY Post story to include the FBI, as opposed to the private sector Infosec community.

But Chen’s testimony — whether it accords with Twitter’s own records or not — is quite clear: while the FBI (and CISA and ODNI) were absolutely warning that there might be hack-and-leak operations in 2016, those warnings did not mention Hunter Biden. Rather than admitting that, Shellenberger instead states as fact that these warnings were “relating to Hunter Biden.”

And then he does something funnier. To prove that these warnings “relating to Hunter Biden” that weren’t related to Hunter Biden weren’t based on any new information, he points to Chan’s repeated comments that the FBI had not seen any intrusions like the 2016 ones.

Q. You said that there might be a Russian hack-and-dump operation?

A. So what I said was although we have not seen any computer intrusions into national-level political committees or election officials or presidential candidates at this time, we ask you to remain vigilant about the potential for hack-and-dump operations, or something to that effect.

Q. Did you specifically refer to the 2016 hack-and-dump operation that targeted the DCCC and the DNC?

A. I believe I did.

Q. Did you provide any basis to the social media platforms for thinking that such an operation 20 might be coming?

A. The basis was — my basis was it had happened once, and it could happen again.

Q. Did you have any other specific information other than it had happened four years earlier?

[snip]

THE WITNESS: Through our investigations, we did not see any similar competing intrusions to what had happened in 2016. So although from our standpoint we had not seen anything, we specifically, in an abundance of caution, warned the companies in case they saw something that we did not.

Q. BY MR. SAUER: So did you ask the companies if they had seen any attempts at intrusions or unauthorized access?

A. This is something that we — that I regularly ask the companies in the course of our meetings. 

Q. Did you ask them in these meetings?

A. Not at every meeting, but I believe I asked them at some meetings.

Q. And did you repeatedly warn them at these meetings that you anticipated there might be hack-and-dump operations, Russian-initiated hack-and-dump operations?

[snip]

THE WITNESS: So repeatedly I would say — can you — can you ask your question like — what do you mean by “repeatedly”? Like times, five times?

Q. BY MR. SAUER: Well, did you do it more than once?

A. I did it more — yes. I warned the companies about a potential for hack-and-dump operations from the Russians and the Iranians on more than one occasion, although I cannot recollect how many times. [my emphasis]

But note that Chan specifically referenced hacks of “national-level political committees or election officials or presidential candidates.”

Hunter Biden is not and was not a national-level political committee.

Hunter Biden is not and was not an election official.

Hunter Biden is not and was not a presidential candidate.

Having misrepresented what Chan said about the extent of any discussions of Hunter Biden (whether it is accurate or not), Shellenberger then pointed to testimony about hacks of political candidates to disclaim the FBI had any information about hacks of someone who is not a political candidate.

And while it doesn’t show up in this deposition because Eric Schmitt doesn’t much care about Russian hacking, Chan’s reference to Russia and Iran is significant: because according to former CISA Director Chis Krebs’ January 6 Committee deposition, both did hack “election-adjacent systems” in 2020.

Q Are you able to form any conclusions as to whether there was a cyber intrusion in connection with the 2020 election?

A Yes. In fact, we released alerts on these things throughout. There were both Russian and Iranian actors that were able to gain access to election-adjacent systems. The Iranians, in one case, I think, had access to a voter registration database. But we’re not aware of any instance where they were in a system that would’ve been directly connected or, you know, involved in casting, counting, certifying of votes.

Indeed, Iran conducted the most notable information operation in 2020, emails to Democrats in Florida purporting to be Proud Boys providing disinformation about the election. So a good deal of the wailing about last minute warnings to social media companies in 2020 had to do, in part, with foreigners maligning far right militia members, not Hunter Biden. We haven’t heard anything about the FBI’s efforts to protect the reputation of the Proud Boys from Elmo’s propagandists, though.

Several more points about Chan’s responses on hack-and-leak campaigns are worth nothing. First, Chan said he kept raising the potential of a hack-and-leak campaign, “in case [the tech companies] saw something that we did not.” Russian denialists like Matt Taibbi — who espoused the Single Server fallacy until at least 2019 — don’t understand this, but when GRU engaged in a hack-and-leak campaign in 2016, tech companies were seeing the operation and attributing it to Russia in real time (though not Twitter, that I am aware of). Tech companies saw some parts of the attack before the FBI did. Yet in his deposition, Chan had to repeatedly explain to Schmitt’s lawyer that most of his interactions with social media companies involve hacks, not disinformation.

THE WITNESS: Yeah. The majority of my interaction with Facebook is not in the disinformation or malign-foreign-influence realm. It is actually for things related to my — to the Cyber Branch, which are specifically cyber investigations.

One time Chan even had to explain that “malign foreign influence” sometimes involves hacking (the Iranian campaign targeting the Proud Boys appears to have, for example). And Chan described several times that his team not only investigated part of the 2016 hack, but still had an active investigation into those actors. That’s important not only because he would have firsthand knowledge of the kinds of attribution social media companies (and Google and Microsoft) had in 2016, but for another reason: On October 19, 2020, DOJ indicted a bunch of GRU hackers, including one charged in the 2016 hack-and-leak campaign, for a variety of additional hacks, including the hack-and-leak targeting Emmanuel Macron. The Macron campaign, specifically, included both Google and Twitter components. So in the very same weeks when — right wingers complain — Elvis Chan was in close contact with Twitter about the ongoing election, he or his subordinates were likely working with prosecutors in Pittsburgh on an indictment implicating both Google and Twitter.

Emmanuel Macron is not mentioned in the Chan deposition.

Something else not mentioned in the Chan deposition — not once among the 36 mentions of Hunter Biden!!! — is Burisma Holdings. Mind you, it was not FBI that had attributed a 2019 hack of Burisma to the GRU, the very same actors under discussion, earlier in 2020, it was a Bay Area Infosec company, that same Infosec community that Yoel Roth had attributed some of his concerns about Hunter Biden to. We have no idea whether the FBI — whether a team under Chan’s direction, possibly! — similarly discovered that GRU had hacked Burisma in 2019. Chan was never asked. It’s one of the questions you’d have to ask, though, if you wanted to know whether the FBI had any knowledge that might lead them to believe that Hunter Biden — as distinct from “national-level political committees or election officials or presidential candidates” — had been targeted with a GRU info op during the 2020 presidential cycle.

So there are several things that you would want to ask Elvis Chan about whether he knew of things in 2020 that might have raised concerns that the NYPost article was part of a hack-and-leak campaign, including what hacks Russian and other foreign countries did do, his interactions with Bay Area companies Google and Twitter in those very same weeks in advance another indictment of the GRU, as well as his knowledge of the Bay Area attribution of a GRU campaign targeting Burisma. Eric Schmitt’s lawyer didn’t ask. Which is to say that nothing in this deposition addresses Shellenberger’s specific claims, which unsurprisingly didn’t stop him from claiming it did.

But at least we know he knows of the deposition, though from the looks of his screen cap, he may have mostly just searched it for isolated language that would confirm his priors.

Lee Fang, whose single entry in Twitter Files is the least dishonest, has also read it. He posted a screen cap reporting as “news” that the FBI weighs in on legislation that affects the FBI (which is tantamount to confessing that Fang knows next to nothing about how DC works; Fang did not retract his wildly erroneous article that was significantly debunked by Chan’s deposition).

In other words, two people associated with the Twitter Files have at least claimed familiarity with this deposition.

And yet, as recently as Friday, #MattyDickPics has continued to make grossly false claims about what FBI was doing.

Over and over again, Matty has complained that the FBI sent Twitter URLs for tweets, including tweets written by Americans.

Some of the moderation decisions he reviewed in his first Twitter File thread focus on Tweets about the means and method of voting. He calls Tweets advertising an incorrect day for election day “silly numbers.”

In short, Matt Taibbi has gone from being furious that Twitter removed non-consensually posted dick pics, some of which were the product of inauthentic campaign launched by Steve Bannon buddy Guo Wengui, to being outraged that the FBI shared Tweets advertising the wrong day for election day.

He has done so in spite of the fact that Chan’s deposition explains why the FBI was doing that: because sending false information that might lead someone to lose their opportunity to vote is a crime.

Q. But you received reports, I take it, from all over the country about disinformation about time, place and manner of voting, right?

A. That is — we received them from multiple field offices, and I can’t remember. But I remember many field offices, probably around ten to 12 field offices, relayed this type of information to us. And because DOJ had informed us that this type of information was criminal in nature, that it did not matter where the — who was the source of the information, but that it was criminal in nature and that it should be flagged to the social media companies. And then the respective field offices were expected to follow up with a legal process to get additional information on the origin and nature of these communications.

Q. So the Department of Justice advised you that it’s criminal and there’s no First Amendment right to post false information about time, place and manner of voting?

[snip]

A. That was my understanding.

Q. And did you, in fact, relay — let me ask you this. You say manner of voting. Were some of these reports related to voting by mail, which was a hot topic back then?

A. From my recollection, some of them did include voting by mail. Specifically what I can remember is erroneous information about when mail-in ballots could be postmarked because it is different in different jurisdictions. So I would be relying on the local field office to know what were the election laws in their territory and to only flag information for us. Actually, let me provide additional context. DOJ public integrity attorneys were at the FBI’s election command post and headquarters. So I believe that all of those were reviewed before they got sent to FBI San Francisco.

Q. So those reports would come to FBI San Francisco when you were the day commander at this command post, and then FBI San Francisco would relay them to the various social media platforms where the problematic posts had been made, right?

A. That is correct.

Q. And then the point there was to alert the social media platforms and see if they could be taken down, right?

A. It was to alert the social media companies to see if they violated their terms of service. [my emphasis]

I’ve got a request into the FBI but have not gotten a response about what crime this violated, but I believe the crime DOJ was relying on — Bill Barr’s DOJ! — was the Ku Klux Klan Act, which was passed in 1871 to prevent racists from conspiring to deprive former slaves from voting. This is the same crime that Douglass Mackey was charged with for allegedly conducting a more systematic campaign to misinform black voters about when to vote in 2016 (Mackey has pled not guilty and is vigorously contesting the constitutionality of the statute).

In other words, after complaining that Twitter chose to take down revenge porn targeting Joe Biden’s son, Taibbi is now complaining that DOJ enforced a law designed to protect Black people’s right to vote.

And his fellow Twitter File propagandists, at least two of whom claim familiarity with Elvis Chan’s deposition that explains this, are letting him continue to grossly misrepresent an effort to protect the right to vote.

Mid-Term Election 2022: August 2 Primary Elections and Ballot Initiatives [UPDATE-3]

[NB: check the byline, thanks. Updates will appear at the bottom of this post. /~Rayne]

Though we’re deep into the primaries already, tonight’s a pretty big night as the following states all held primary elections today including ballot initiatives:

Arizona — August 2 (head to bmaz’s post for this state’s results)

Kansas — August 2

Michigan — August 2

Missouri — August 2

Ohio — August 2

Washington — August 2

Counting may not be complete for races but there’s already a doozy of a political wind indicator out of red state Kansas. An initiative to amend the state’s constitution was on the ballot and it hasn’t gone the direction anti-abortion activists wanted.

Here’s an explainer from Ballotpedia:

The Kansas No State Constitutional Right to Abortion and Legislative Power to Regulate Abortion Amendment is on the ballot in Kansas as a legislatively referred constitutional amendment on August 2, 2022.

A “yes” vote supported amending the Kansas Constitution to:

  • state that nothing in the state constitution creates a right to abortion or requires government funding for abortion and
  • state that the legislature has the authority to pass laws regarding abortion.

A “no” vote opposed amending the Kansas Constitution, thereby maintaining the legal precedent established in Hodes & Nauser v. Schmidt (2019) that the Kansas Bill of Rights provides a right to abortion.

As of 9:16 p.m. ET the results looked like this:


And by 9:26 p.m. ET, Cook Political Report’s Dave Wasserman was calling it for reproductive rights:


There had been an attempt to ratfuck the vote for this initiative:


Voters were sent text messages without attribution providing the wrong instructions about the initiative. It’s not clear whether this violates any federal law but Kansas Governmental Ethics Commission responded to complaints about this ratfucking attempt with a Twitter thread explaining that under Kansas’s current state law attribution for political advertisements wasn’t required for ballot initiatives though it is required for candidates’ campaign ads.

Sounds like this should be on the next ballot.

~ ~ ~

In my home state, things went about as expected:

– Trump’s endorsed candidate, Tudor Dixon, won the MIGOP primary. She’s not as wretched as a couple other MIGOP candidates but she’s still absolutely awful.

How nice of you to want to force your personal choice on all Michiganders, Dixon.

– MAGA candidate Kevin Gibbs had the lead early over Rep. Peter Meijer. The race has tightened substantially and is too narrow to call at this point.


You’ll recall the DCCC through money behind Gibbs so they could run against a Trumpy candidate in a newly configured district. Meijer, who was one of only 10 GOP reps to vote for Trump’s impeachment, currently holds the seat once held by Justin Amash.

~ ~ ~

Trump’s attempt to split the baby by endorsing “Eric” in the Missouri GOP Senate primary race didn’t go to plan, exactly. Eric won, but not Eric Greitens.


Trump will claim victory through Eric Schmitt anyhow, you can be sure. His narcissism wouldn’t have it any other way.

~ ~ ~

What do you see in the other primary races and ballot initiatives tonight? Let us know in comments.

Let’s stay on topic here because there’s plenty of primary election material to discuss without dragging in other topics.

~ ~ ~

UPDATE-1 — 12:35 PM ET — 03-AUG-2022 —

DCCC’S money paid off and defeated incumbent Rep. Peter Meijer:

Grrr…sure hope DCCC pulls out the stops and gets behind Scholten because the western part of this district and the DeVos/Van Andel/Prince crowd may not take this lying down even if a Trumpy MAGAt is the GOP candidate.

I’ve experienced supporting a state legislative candidate who was targeted by DeVos money. It can get fucking ugly.

~ ~ ~

UPDATE-2 — 1:00 AM ET — 03-AUG-2022 —

Can you not do better than this hack, KSGOP? This is the best you’ve got, a lawyer who needed remedial law classes?

Anyhow, here’s Democratic opponent Chris Mann’s campaign website.

~ ~ ~

UPDATE-3 — 9:15 PM ET — 03-AUG-2022 —

Another too-little-discussed bellwether was Missouri’s 1st Congressional District primary race. Incumbent progressive Rep. Cori Bush beat out four other Democrats taking more than 69% of the vote. Her strongest opponent, Steve Roberts, is and remains a Missouri state senator for District 5; he ran to the right of Bush.

The GOP primary in that district was won by Andrew Jones Jr. with 6,927 out of 16,328 total GOP votes. Even Roberts took more votes than the total GOP primary votes.

Clearly MO-01, home to 714,746 citizens, wants a progressive representative.