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Trump’s Deep State Can’t Even Deep State Competently

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I was and still intend to write a post arguing that all of the coverage of this comment from Trump is wrong. As I rant on Nicole Sandler’s show today, what we saw in these few moments was Trump, whose super power is in being able to command attention, not only failing that, but flubbing his lines when he tried to reassert his command over attention focused on Jeffrey Epstein.

The conspiracy theorists who put Trump in office will not let him take ahold of this conspiracy.

What we see in this exchange is — more than at any time in the last ten years, I argue — Trump’s super power of commanding where people focus their attention failing him.

So I want to write about how everyone is getting this wrong.

But first, I want to talk about how Trump’s Deep State can’t even Deep State competently.

Trump’s attempt to tamp this down, predictably, had the opposite effect, both because infighting over who fucked up the incompetent attempt to tamp it down, and the conspiracy theories that have arisen in the void.

Conspiracy theorist Laura Loomer is at the pivot of both worlds, and she’s playing her part to perfection. She started things today by revealing that Dan Bongino — who actually doesn’t like how hard he has to work at FBI anyway — complaining about how the memo that attempted but failed to tamp all this down happened.

That led Todd Blanche, fresh off his efforts to make the Erez Reuveni disclosures worse, to weigh in, claiming there was no dispute about how to release the Epstein memo.

Meanwhile, Marc Caputo — who has close ties with Susie Wiles from way back — debunks Blanche’s claim of harmony,  describing that Wiles and Taylor Budowich witnessed anything but.

The intrigue: MAGA influencer Laura Loomer, a Bondi critic, first reported Friday on X that Bongino left work and that he and Patel were “furious” with the way Bondi had handled the case.

  • Some Trump advisers have criticized Bondi, but Trump “loves Pam and thinks she’s great,” a senior White House official said.
  • Those witnessing the Wednesday clash between Bondi and Bongino in the White House were Patel, White House Chief of Staff Susie Wiles and Deputy Chief of Staff Taylor Budowich.

The more important part of Caputo’s report, though, is that insiders blame Bongino for the “missing minute,” which provided the nutters reason to doubt the entire effort to tamp all this down.

Zoom in: At the center of the argument: a surveillance video from outside Epstein’s cell that the administration released, saying it was proof no one had entered the room before he killed himself.

  • The 10-hour video had what has widely been called a “missing minute,” fueling conspiracy theories in MAGA’s online world about a cover-up involving Epstein’s death.
  • The “missing minute,” authorities say, stemmed from an old surveillance recording system that goes down each day at midnight to reset and record anew. It takes a minute for that process to occur, which effectively means that 60 seconds of every day aren’t recorded.
  • Bongino — who had pushed Epstein conspiracy theories as a MAGA-friendly podcast host before President Trump appointed him to help lead the FBI — had found the video and touted it publicly and privately as proof that Epstein hadn’t been murdered.

That conclusion — shared by FBI Director Kash Patel, another conspiracy theorist-turned-insider — angered many in Trump’s MAGA base, criticism that increased after Axios first reported the release of the video and a related memo.

  • After the video’s “missing minute” was discovered, Bongino was blamed internally for the oversight, according to three sources.

Only, complaints about the video are only going to get worse. Wired describes that the metadata shows the video has been altered.

The “raw” file shows clear signs of having been processed using an Adobe product, most likely Premiere, based on metadata that specifically references file extensions used by the video editing software. According to experts, Adobe software, including Premiere and Photoshop, leaves traces in exported files, often embedding metadata that logs which assets were used and what actions were taken during editing. In this case, the metadata indicates the file was saved at least four times over a 23-minute span on May 23, 2025, by a Windows user account called “MJCOLE~1.” The metadata does not show whether the footage was modified before each time it was saved.

The embedded data suggest the video is not a continuous, unaltered export from a surveillance system, but a composite assembled from at least two separate MP4 files. The metadata includes references to Premiere project files and two specific source clips—2025-05-22 21-12-48.mp4 and 2025-05-22 16-35-21.mp4. These entries appear under a metadata section labeled “Ingredients,” part of Adobe’s internal schema for tracking source material used in edited exports. The metadata does not make clear where in the video the two clips were spliced together.

Hany Farid, a professor at UC Berkeley whose research focuses on digital forensics and misinformation, reviewed the metadata at WIRED’s request. Farid is a recognized expert in the analysis of digital images and the detection of manipulated media, including deepfakes. He has testified in numerous court cases involving digital evidence.

Farid says the metadata raises immediate concerns about chain of custody—the documented handling of digital evidence from collection to presentation in a courtroom. Just like physical evidence, he explains, digital evidence must be handled in a way that preserves its integrity; metadata, while not always precise, can provide important clues about whether that integrity has been compromised.

“If a lawyer brought me this file and asked if it was suitable for court, I’d say no. Go back to the source. Do it right,” Farid says. “Do a direct export from the original system—no monkey business.”

Farid points to another anomaly: The video’s aspect ratio shifts noticeably at several points. “Why am I suddenly seeing a different aspect ratio?” he asks.

It is abundantly likely that all of this is easily explained. I noted in my first post that the missing minute probably comes from MCC’s ancient surveillance equipment. And it sounds like someone packaged this up for Bongino.

Of course, none of that is going to matter if and when people confirm that the video doesn’t even show Epstein’s cell, as multiple people claim.

Every single wrinkle will only serve to feed the conspiracy theorists whose attention Trump cannot manage to command.

Here’s the thing, though. I think Bondi probably did shut down these investigations because they are inconvenient to Trump. Maybe it stems from nothing more than Trump’s demand to command attention; maybe it has to do with the known connections between Trump and the abuser looking damning no matter how close or far Trump is to the rape.

But because the Deputy Director of the FBI, an agency with thousands of people with expertise on this kind of thing, couldn’t manage to find someone who could hold his hand and explain basic things like chain of custody, they have all made it far, far worse.

Trump’s Deep State can’t even Deep State competently.

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Pam Bondi Admits She Must Fire Kash Patel and Dan Bongino

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Even before Trump was inaugurated, I had great fun boosting expectations that Trump would release the Jeffrey Epstein files.

I didn’t do so because I believed there would be a massive Epstein release (partly because some of the conspiracy theories about Jeffrey Epstein are not true and partly because what is true is that Trump is among the powerful men who are implicated). I didn’t do so because I believed any files would ever come out.

I did so because beliefs about Epstein are non-falsifiable. I did so because even if there were no damning materials tying Trump to Epstein, the President would still never be able to satisfy the expectations of his mob.

I did so because the promise (from Kash Patel, long before he was confirmed, and then from Pam Bondi) and expectation that Trump would release the files was an expectation that Trump’s supporters should expect to have fulfilled — after all he ordered DOJ to do just that, with the JFK, RFK, and MLK files.

But there’s no chance their expectations can ever been fulfilled. It was a way, I knew, where Trump was going to disappoint some of his most rabid fans.

Trump promised to release the secret files the continued secrecy of which have fueled decades of conspiracy theories, so why wouldn’t he release files about pedophilia, the legitimate concern that has fueled the Trump-supporting QAnoners?

I fueled such expectations on Xitter because if the demand to see the Epstein files ever took hold, Bondi would be stuck.

Then Bondi made things worse when she told Fox News that Epstein’s client file was on her desk for review. She made things worse when she orchestrated the re-release of the already-released files to a select group of right wing propagandists, all packaged up to look special, a spectacle that stoked divisions among MAGAts but also raised concerns that she was covering stuff up. She made things still worse when — responding to James Comer’s role in making things worse, when he claimed the Epstein files had been disappeared — she said there were tens of thousands of videos involving Epstein.

Kash Patel, who promised to release the files, and Dan Bongino, who begged his readers never to let go of this scandal? They fed the fever too with their years of spreading conspiracy theories about the Epstein files. And when FBI’s conspiracy theorists in chief tried to reverse course a month ago, it only further fueled suspicions.

Then Elon joined the fun, accusing Trump of being in the Epstein files as part of his tantrum against Trump (but then deleting that file). As someone who was also close to Ghislaine Maxwell, Elon might know!

Dan Goldman joined in, expressing, “grave concern about what appears to be a concerted effort by you to delay and even prevent the release of the Jeffrey Epstein Files,” and asking whether Trump’s identity was being redacted from any of the files. Robert Garcia and Stephen Lynch joined in, writing Pam Bondi a letter, asking Bondi to formally answer whether the Epstein files are being withheld — as Elon Musk alleged — because Trump is in them, and further asking (among other questions) whether Trump had a role in the delay of their release.

Bondi’s stonewalling, after both she and Kash promised everything would come quickly, was becoming the story.

So yesterday, DOJ and FBI released (or rather, made available to Axios without yet, apparently, releasing it via normal channels) a two-page unsigned notice (which may be on letterhead created for the purpose).

It included two main, credible conclusions:

  • Much of the material that FBI has depicts victims and any release of that material would retraumatize the victims.
  • FBI concluded (and Trump’s flunkies agree) that Jeffrey Epstein killed himself. DOJ released two files (one unaltered, one enhanced, both with titles that do not even mention Epstein) showing that no one entered his cell the night he killed himself.

But there’s also a short, broader conclusion that is less sound.

This systematic review revealed no incriminating “client list.” There was also no credible evidence found that Epstein blackmailed prominent individuals as part of his actions. We did not uncover evidence that could predicate an investigation against uncharged third parties. [my emphasis]

Emphasis on credible?

Of course there’s a client list; one version of it was already released. There are also the names or descriptions shared by victims of the men who abused them. And while there may be no evidence in the FBI files that Epstein did blackmail Trump or anyone else, he had blackmail material on them. There’s certainly credible reason to believe that information is one of the reasons he was allowed to persist so long; it was useful for other powerful people, possibly even spooks in one or another country. That FBI didn’t uncover evidence confirming that others were involved in trafficking young people is dramatically different from saying that there’s no damning information implicating Epstein’s Johns.

But let’s assume for the moment that these conclusions are impeccable (and as I said, the decision not to release videos showing victims and the conclusion about the suicide are sound), that means that the people who’ve been claiming to have inside knowledge who promised to release the files — starting with FBI Director Kash Patel and FBI Deputy Direct Dan Bongino — are braying conspiracy theorists who cannot be trusted in any position of authority.

If it’s true that all this was a conspiracy theory, Kash and Bongino must leave the FBI, because they’ve just confessed they will endorse any kind of conspiracy theory to spin up Trump’s rubes. Pam Bondi must call for their resignations immediately, and while she’s at it, she should leave herself, because her original stunt release created the very expectations that she’s now trying to squelch.

They all promised to fulfill conspiracy theories and are now claiming they were lying about their certainty there was some there there.

Honestly, they’d be doing themselves a favor by doing so. But that won’t happen, and because these conspiracy theories are non-falsifiable, this attempt to make the entire promised reveal go away will simply fuel further conspiracy theories. Indeed, it already is.

Kash Patel, Dan Bongino, and Pam Bondi have now confirmed they are raging conspiracy theorists. And yet even that will not be enough to tamp down further conspiracy theories.

Update: I’m laughing my ass off. Doocy quoted Pam Bondi’s claim from an old interview, stating she had the client list on her desk. Karoline Leavitt spun it, with Doocy making big faces.

In addition, Unusual Whale notes that the last minute of the day (these may be PT time), from 11:58:59 to 11:59:59, missing from the video. Oh, and it turns out it’s not even the right cell.

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“Egregious Behavior:” Alina Habba Confesses She Must Prosecute Donald Trump

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Note: I’m obviously failing my effort to get off this website for a week. I haven’t left yet!! But hopefully I can wean myself off this thing for a week starting … now.

Twice yesterday, Alina Habba made claims about prosecutorial priorities that mandate she charge her boss, Donald Trump.

First, she RTed the NJ USAO announcement of charges against someone who threatened several judges.

The charges seem real, involving phoned threats to cut off judges’ fingers or shoot them, though the accused perpetrator left the country (possibly to India) in 2018, and there’s no announcement of an extradition request. Plus, Ricky Patel — the same guy who ginned up the arrest of Ras Baraka after Baraka obeyed Patel’s request to leave a property onto which he had been invited — is involved, which makes it suspect.

In both the Tweet and the press release, Alina Habba, who represented Donald Trump when he routinely attacked judges in that case and others, presumably Tweeting some of those threats from his property in New Jersey, whose attacks led to phoned-in threats to Judge Juan Merchan and his staffers, talked about how heinous it is threaten judges.

“The conduct alleged in the Indictment is as heinous as it is troubling: threats to a federal judge, two state superior court judges, an elected official, and a private New Jersey resident. The conduct is not just reckless — it is a direct attack on our justice system. Targeting those who uphold the rule of law is an attack on every community they serve. This egregious behavior is unacceptable. And, as the charges make clear, no matter where you are, we will find you and hold you responsible.”

Excuse me? If you believe this, Alina, you charge Donald Trump for what you call heinous behavior.

Maybe even consider whether you need to turn yourself in for some of your attacks on the judge?

But Habba wasn’t done.

After that, Habba RTed Kash Patel’s announcement of charges for a man in Florida who allegedly — and I emphasize allegedly — threatened Habba.

Kash claimed this was an instance of a “copycat” threat using “86,” a clear reference to Jim Comey’s Tweeting something he saw on a beach.

A dangerous copycat, fueled by reckless rhetoric from former officials, threatened those protecting our country. Political violence has no place here. Proud of our @FBITampa and thankful to our Florida partners for acting fast to deliver justice.

The indictment in question charges a guy named Salvatore Russotto with two counts — threatening an official and assault (18 USC 111) — for four kinds of statements:

  • Calling Alina Habba the C-word, repeatedly
  • Hoping she dies a painful death (but not threatening to cause that himself)
  • Saying “86” her
  • Calling for “death penalty for all traitors”

Kash already charged someone else for using the 86-term, though in that case, the threats were much more graphic and personalized.

But this? Hoping someone dies? Calling someone the C-word?

The only real threat is calling for the death penalty for traitors. Remember Trump’s threats against Liz Cheney? Against Peter Strzok?

How about the time when current FBI Director and then private citizen Kash Patel told a lie about something in a John Durham filing, which led Trump to claim that Michael Sussmann should be put to death?

Trump calls his adversaries traitors all the time, and he has repeatedly called for them to be killed. Speaking of copycat, so did hundreds of the Jan6ers Trump pardoned after they stormed the halls of Congress calling to “Hang Mike Pence.” Those people weren’t charged with assault for that, but then I guess DOJ could now charge them?

And again, some of these threats Trump made undoubtedly were issued from New Jersey, and many of them were less than five years ago.

Of course, Kash’s decision to charge someone for the kind of threat he has facilitated is about Comey, not rule of law, perhaps an attempt to make nothing into something. Kash wants to claim that this is a copycat, but that Jack Posobiec’s even more viral use of the very same term against Joe Biden, also fewer than five years ago, was not.

If I were the lawyer of the guy in Florida, I would raise all this in a selective prosecution bid. As I also would if I represented the Alabama woman charged with bringing home classified documents (also a seemingly legitimate case) after a search the likes of which Kash called “unlawful” when such a search targeted Mar-a-Lago.

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Fridays with Nicole Sander

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Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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Ball of Thread, Ball of Kash

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LOLGOP and I have done the final installment of our Ball of Threads podcast — focused on Kash Patel, who serves as kind of the alpha and omega of Trump’s grievance narrative.

The Senate is rushing to confirm Kash in days ahead, in spite of all the prevarication and conflicts we review in this video.

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Republicans Continue to Cover Up Why Kash Patel Pled the Fifth

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Today, the Senate Judiciary Committee stalled the vote on Kash Patel’s nomination another week.

A bunch of Republicans are wailing that Democrats are afraid of something.

But it’s clear Chuck Grassley is.

A week ago, he released a bunch of documents he read in Kash Patel’s confirmation hearing. They show that DOJ first opened a grand jury to investigate the fake electors plot on January 31, 2022. But FBI delayed two months, from February 12, 2022, at which point they had a draft opening Electronic Communication, to April 13, when they finally approved it. (I’ve included those dates in this timeline.)

The documentation shows that on both the FBI and DOJ side, top executives approved the investigation, as required by DIOG.

Grassley claims blah blah blah it’s not clear what about politicization, based on his debunked claims about Tim Thibault (claims that Jim Jordan’s committee debunked).

Remember: Tim Thibault is one of the three FBI Agents who opened an investigation targeting Hillary Clinton and the Clinton Foundation during the 2016 election cycle, based substantially on Peter Schweizer’s book. That’s the guy the right wingers have spun up as a raging lefty. That’s the guy who was involved in stalling the investigation of Trump for two months.

But the reason Chuck Grassley is sharing this is … mostly hot air, to justify Pam Bondi’s witch hunts.

And also to justify refusing to find out what Kash Patel is covering up about his 2022 grand jury testimony. Chuck Grassley appears to be using his own misrepresentations of Tim Thibault’s role in all this to refuse to support any inquiry into Kash’s grand jury testimony, apparently claiming that the entire Jack Smith investigation — both prongs of which were predicated long before he was hired — was thereby tainted. In a letter following up on that, Sheldon Whitehouse, Cory Booker, and Adam Schiff (but no one else, up to and including Dick Durbin) urge Grassley to reconsider his refusal to demand Kash’s grand jury testimony.

We write to object to Kash Patel’s continued refusal to provide members of the Senate Judiciary Committee information essential to our consideration of his nomination to be Director of the Federal Bureau of Investigation. Mr. Patel has repeatedly refused to discuss the testimony he provided to a federal grand jury investigating Donald Trump’s unlawful retention of classified documents, as well as his invocation of his Fifth Amendment privilege against self-incrimination. We regret that you have rejected our efforts to inquire into the first-ever invocation of Fifth Amendment protection by a nominee seeking to lead the FBI.

Democrats are trying to figure out what Kash Patel believed, in October 2022, that he had criminal exposure in an Espionage Act investigation.

And Chuck Grassley wants to use the fact that the FBI stalled the January 6 investigation into Donald Trump for two months as an excuse to refuse that.

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How Senate Judiciary Committee Dems Fucked Up the Kash Patel Nomination Hearing

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I have always said I think it likely Kash Patel will be confirmed. But that shouldn’t have made yesterday’s confirmation hearing pointless. Democrats did that on their own, though a combination of inadequate preparation and absence of leadership.

Dems tried to demonstrate Kash’s manifest lack of fitness for the job in three ways:

  • Pointing to all the attacks on law enforcement he made on random podcasts
  • Probing his role in disseminating the January 6 choir
  • Dancing around his invocation of the Fifth in the Jack Smith investigation

Pointing to all the attacks on law enforcement he made on random podcasts

Kash dealt with the first line of attack — his incendiary comments on social media — by claiming that his comments were taken out of context.

The only time such claims made any sense, when he tried to spin his complaints about the January 6 response, should have led to detailed follow-up of all the ways his testimony conflicts with every other witness on January 6. Kash even, yesterday, doubled the number of National Guard he claims Trump authorized, a claim that is debunked by the testimony of multiple pro-Trump witnesses. And even if his claims were true (he blames and blamed Ryan McCarthy for the delay in Guard response on January 6) means that his own leadership was faulty. At the very least, committee Democrats should have asked whether he was implicated in Barry Loudermilk’s insinuation that the failure to deploy the Guard was contemptuous.

Similarly, when Kash disclaimed remembering far right podcast host Stew Peters and Dick Durbin noted that Kash had appeared on the show eight times, Durbin should have followed up and asked what kind of compromise such promiscuity could cause an FBI Director.

Probing his role in disseminating the January 6 choir

There were many questions about Kash’s role in promoting the January 6 choir — but in spite of a conflict with Adam Schiff over the meaning of “we,” no one ever got Kash explain who did do the rest (though Adam Schiff did state that Kash had done no due diligence before pushing the video).

This matters, because some of Kash’s buddies (including conspiracy theorist Julie Kelly) routinely make false claims about rioters, and finding the source of Kash’s false claims is important to his warped reality going forward.

But the entire thrust of these questions was hampered by the point I made here and here: they relied on a superficial understanding, based off press releases rather than court dockets, of who these people were.

Schiff asked Kash if he promoted a video showing assailants attacking FBI agents, would it make him unfit to be Director. Why not, then, focus directly on the gun that Barton Shively grabbed when probation officers showed up, precisely the kind of thing that has gotten FBI agents killed in recent years.

And if you want to persuade — or at least, embarrass — your Republican colleagues, why not make it clear that the violent rioters under discussion didn’t just attack cops, but they threatened to drag people like Chuck Grassley and Lindsey Graham through the streets? Kash didn’t just promote people who attacked cops, he promoted people who wanted to attack members of the Committee.

Dancing around his invocation of the Fifth in the Jack Smith investigation

It’s on Kash’s invocation of the Fifth that I’m most upset, because Democrats may have forfeited the opportunity to make this a scandal going forward.

It started strongly enough. Cory Booker first raised it, and got Kash to claim he wanted his grand jury testimony released, after which Booker tried — but failed — to get Kash to elaborate on his testimony. Later, Schiff returned to the question and asked whether he supported getting both his grand jury transcripts and any mention of him in Volume Two, which led to what were probably Kash’s angriest looks of the hearing.

But after that, in the second round, a number of senators returned to the issue, mangling the grand jury standard by falsely saying that if Kash consents to the release of the transcript it can be released, and focusing primarily on the transcript and not the report (the latter of which made his eyes bug out when Schiff raised it).

This is the kind of thing you need to coordinate! This is the kind of thing where the actual grand jury rules matter! This is the kind of thing where the McGann precedent matters! 

And this is the kind of thing that demanded a coordinated set of yes or no questions about Kash’s testimony, because yesterday’s hearing was the one opportunity Dems will ever have to force him to answer question about what he told the grand jury.

All the more so because, it appears, Dems haven’t done what they should have to make an issue of the report (I first described the import of it to this confirmation on January 13).

On Wednesday — literally the day before the hearing — Dems wrote a letter to Acting Attorney General James McHenry asking for the report. While the letter referenced Dick Durbin asking Pam Bondi about it buried on page 41 of her Questions for the Record, that question did not tie the request to the need to advise and consent on confirmations. Tuesday’s letter nevertheless pointed to that question to claim that Aileen Cannon should have known about it.

On January 23, 2025, the Committee issued a “Notice of Committee Nomination Hearing” for Mr. Patel, which is now scheduled for January 30, 2025. The Ranking Member of the Committee submitted on January 16, 2025, Questions for the Record (QFR) to Attorney General nominee Pamela Jo Bondi following her confirmation hearing, requesting that she commit to making Volume Two of the Special Counsel’s report available immediately for review to the Senate Judiciary Committee Chair, Ranking Member, or their designees.2

This formal request preceded an order issued several days later by a judge in the United States District Court for the Southern District of Florida that enjoined the Department from releasing or otherwise making available a redacted version of Volume Two of the Special Counsel’s report to the House and Senate Judiciary Committees. In the order, the judge erroneously stated that “[t]here is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case,” despite the prior request which her order omits. The judge also concludes wrongly that the Department “identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now,” notwithstanding the Committee’s ongoing consideration of Mr. Patel and others’ nominations.3

2 Senate Judiciary Committee, Questions for the Record the Honorable Pamela Jo Bondi Nominee to be Attorney General of the United States, (Jan. 16, 2025), https://www.judiciary.senate.gov/imo/media/doc/2025-01-15_- _qfr_responses_-_bondi.pdf

3 United States v. Trump, No. 9:23-cr-80101, (S.D. Fla. Jan. 21, 2025) ECF No. 714 at 7; In addition, on January 13, 2025, Senator Dick Durbin, Ranking Member of the Senate Judiciary Committee and the other Democratic members of the Committee submitted a letter to then-Attorney General Merrick Garland “recogniz[ing[ the current injunction against the release of Special Counsel Smith’s report and related materials and reserv[ing] its right to request production of the report and relevant records at an appropriate future date.” Senate Judiciary Committee Letter Requesting Preservation of DOJ documents (Jan. 13, 2025), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20DOJ%20on%20Records%20Preservation.pdf

This falls short of informing Cannon, however, and submitting an urgent request for the report in conjunction with this confirmation the day before the hearing is rather late, particularly since Grassley might try to push through the confirmation before the stated due date for the report, February 10 (which is still before Cannon’s injunction runs out).

Given Kash’s glare, I’m pretty confident that the report will suggest Kash prevaricated before the grand jury. I even suspect we’ll eventually get some semblance of the report (I also think DOJ’s efforts to fire everyone who might have a copy, on Friday, before they moved to dismiss the case against Walt Nauta and Carlos De Oliveira, on Monday, while a transparent attempt to prevent its release, may be inadequate to that effort).

I think that if the report comes out, it will become clear that the delay in releasing it served primarily to preserve Kash’s nomination chances. I think that it’s likely not to happen before he is confirmed, but I think if that happens after Kash’s confirmation, it can be made a key demonstration of the corruption inherent to Trump’s DOJ.

But Democrats have not done the things they needed to do to to make that a scandal.

Trump’s DOJ is involved in a cover-up as we speak, a cover-up designed to hide how the aspiring FBI Director was complicit in Trump’s efforts to retain classified documents in his insecure basement. But Democrats have not done what they need to do to impose a cost for that cover-up.

Kash disclaims the purge in process

Cory Booker was perhaps the bright spot of the day. In addition to first raising Kash’s role in the documents investigation, he got Kash to disclaim knowledge of a purge in process, in which at least six senior FBI agents were pushed out, during the hearing.

This is another thing that may be turned into a scandal going forward.

Compile this video

As this post makes clear, most of these Senators are quite proud of their testy confrontations with Kash. They’ve sent them out individually.

It’s not too late to make use of them. Democrats can and should put together three videos focused on each of these topics. Intersperse Kash’s claim to stand by cops with video of those he celebrated attacking them. Intersperse Kash’s disavowal of the Neo-Nazis he has been sidling up to with what he said on their shows. And make a video of all the times Kash claimed to want to release his testimony with a focus on the effort to cover it up.

Kash Patel is almost certainly going to be confirmed. And he will almost certainly be a catastrophic appointee. So Dems need to do far more than they did yesterday to impose a cost going forward on his pick — one that, especially, will make it easier to demonstrate the corruption of his installation.

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A Summary of Kash Patel’s Disqualifications to Lead FBI

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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.

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

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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.

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