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“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

  • Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

  • Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
  • Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
  • Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

  • Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
  • Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
  • Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
  • Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

DOJ’s Theory of Trump’s Mob

DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.

[snip]

[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

  • The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
  • In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
  • Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
  • Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.

The Milley Tape: “Bring Some Cokes in Please!”

CNN obtained copies of the recording described in ¶34 of Trump’s Espionage Act indictment. This is my take.

“This thing just came up.”

Shortly after the CNN clip starts, Trump says, “I have a big pile of papers, this just came up.” He’s saying that, remember, after having transported the documents from Mar-a-Lago to Bedminster for the summer. His comment that, “this just came up,” suggests he was not only carrying these documents around, but reviewing them.

Given the fact that Trump’s lawyers weren’t able to find this document, it means he was reviewing them … before they disappeared forever.

“These are bad sick people”

Trump compulsively shared this document for revenge — the same reason he put together the dumbass Russian binder. It not just speaks to intentional retention of documents, but it shows that he intended, from the start, to retain documents to exact revenge on his perceived detractors.

Note that this is the same reason he released classified information at least once while President — when he shared details about the Josh Schulte investigation with Tucker Carlson on the same day the FBI planned to search Schulte’s home. He did so because of false claims he had been wiretapped, but also did so to blame President Obama for the leak.

Trump’s pathological need for revenge would be very very easy to exploit by anyone willing to push Trump’s buttons.

“You probably almost didn’t believe me, but now you believe me”

As multiple reports regarding this document explained, Trump was lying. This document didn’t come from Milley, it dated back to Milley’s predecessor, sometime in 2019. Nevertheless he kept saying, “this was him, this totally wins my case.”

So it didn’t prove his case. Milley didn’t want to attack Iran, but Trump was using an unrelated document to claim that he did.

But Trump was using it — waving a document he described as highly confidential — to substantiate a false claim.

“She’d send it to Anthony Weiner, the pervert”

Trump and his aide joke about Hillary printing this out and sending it to Anthony Weiner. That’s unsurprising: Trump always rationalized his own mistreatment of information by pointing to Hillary’s email server (this Roger Parloff post is a remarkably thorough debunking of Trump’s claims).

But understand how this comment will appear against the context of the five attacks on Hillary Trump used to get elected, cited in the indictment.

Jack Smith plans to use Trump’s past condemnation of Hillary to show that Trump knew this was wrongful. So even his false quip about Weiner will make this evidence more valuable.

And then, at the end of this recording, Trump called a staffer to bring some cokes, emphasizing how banal sharing classified information was for Trump.

Update: Several people questioned who leaked this in comments. Remember that at an equivalent point in Michael Cohen’s prosecution — when SDNY was about to get the recording Cohen made of Trump ordering a hush payment — Trump released the tape to preempt damage. In that case, Trump would have gotten the recording via discovery, because he was participating in the Special Master review. In this case, Trump independently owns copies of the recording, which was made for his own purpose.

It’s certainly possible someone else (perhaps the journalists who took it) released it. But Trump releasing it — then blaming Jack Smith just as Aileen Cannon gets involved in such issues — would be the most predictable thing ever.

Update: Fixed my misuse of avenge.

Lordy, There Are Tapes [of Trump Acknowledging He Had Stolen Classified Documents]!

CNN has a blockbuster report about a recording, taken in conjunction with Mark Meadows’ memoir, capturing Trump claiming that he had a document planning an attack on Iran that he wished he could share, but could not, because it was classified.

The July 2021 meeting was held at Trump’s golf club in Bedminster, New Jersey, with two people working on the autobiography of Trump’s former chief of staff Mark Meadows as well as aides employed by the former president, including communications specialist Margo Martin. The attendees, sources said, did not have security clearances that would allow them access to classified information. Meadows didn’t attend the meeting, sources said.

Meadows’ autobiography includes an account of what appears to be the same meeting, during which Trump “recalls a four-page report typed up by (Trump’s former chairman of the Joint Chiefs of Staff) Mark Milley himself. It contained the general’s own plan to attack Iran, deploying massive numbers of troops, something he urged President Trump to do more than once during his presidency.”

The document Trump references was not produced by Milley, CNN was told.

[snip]

The meeting in which Trump discussed the Iran document with others happened shortly after The New Yorker published a story by Susan Glasser detailing how, in the final days of Trump’s presidency, Milley instructed the Joint Chiefs to ensure Trump issued no illegal orders and that he be informed if there was any concern. The story infuriated Trump.

Glasser reported that in the months following the election, Milley repeatedly argued against striking Iran and was concerned Trump “might set in motion a full-scale conflict that was not justified.” Milley and others talked Trump out of taking such a drastic action, according to the New Yorker story.

On the recording and in response to the story, Trump brings up the document, which he says came from Milley. Trump told those in the room that if he could show it to people, it would undermine what Milley was saying, the sources said. One source says Trump refers to the document as if it is in front of him.

Several sources say the recording captures the sound of paper rustling, as if Trump was waving the document around, though is not clear if it was the actual Iran document.

This is clearly an elaboration of what WaPo reported (as evidence of obstruction!) here, which I wrote about here. It is one of two documents — the other is a map — persistently described as something prosecutors asked about because Trump discussed sharing it with others.

The meeting was in Bedminster, not Mar-a-Lago.

One reason witnesses would be asked about it is to find out if Trump really had the document in front of him.

Let me explain how I think it relates (WaPo’s conceit notwithstanding) to potential Espionage Act or 18 USC 2071 charges.

First, it’s certainly possible this is one of the documents pertaining to Iran that WaPo has reported were among the ones obtained in the search in August 2022.

If it is, then it would be a document that Trump transported back and forth from Florida — something that would make it easier for DOJ to charge this in DC instead of SDFL.

If it’s something DOJ didn’t obtain in the search, but also didn’t obtain among the documents Trump returned in either January or June 2022, then … then we have problems. If this is among the documents that DOJ thinks Trump didn’t return, then we have problems, especially given Jack Smith’s focus on Trump’s LIV golf deal, because this is the kind of document that the Saudis would pay billions of dollars for.

Weeks ago, CNN also reported that Smith had asked NARA for 16 documents about declassification decisions. Few have considered the possibility those documents relate to specific documents that Trump still retained — though if there are any Russian investigations among those Trump retained at least until January 2022, then there surely would be. The same could be true here.

The document is, as CNN reports, evidence that Trump knew he had stolen classified documents.

Importantly, though, it’s also evidence about motive. No matter what reason Trump originally stole this document, this incident shows how Trump was exploiting it: To prove a critic wrong.

It’s precisely the same reason why Trump spent his last days attempting to declassify all the Russian investigation documents: revenge. It’s the most Trump motive ever.

But it also goes a long way to prove one of the more serious crimes listed in the warrant authorizing the search last August.

As I laid out in August, the elements of a straight up 18 USC 793 offense are:

  • Did the defendant, without authorization, have possession of, access to, or control over a document that was National Defense Information?
  • Did the document in question relate to the national defense?
  • Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation?
  • Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it?
  • Did he keep this document willfully?

All of Trump’s behavior here fulfils these elements of offense. The document could be heard rustling on the recording, and several witnesses can describe whether he really had it. The document pertained to an attack on Iran, quintessentially a matter of national defense. Trump exhibited awareness that he couldn’t share it, because it was classified. And Trump had it, at least in part, to avenge what he perceived as a slight by Milley.

The one caveat — one made by Charlie Savage on Twitter — is the bolded bullet. DOJ had not yet subpoenaed this document. If he wasn’t caught in possession in of this document, it would serve only as evidence of 18 USC 2071 — the law prohibiting taking classified documents that disqualifies someone from holding federal office. Though if he ever did share it with people, it could exposure him to more serious levels of the Espionage Act.

All trials are about prosecutors telling stories.

This incident is a story so good that Trump tried to tell it himself, and in the process got recorded admitting he had stolen classified documents. And that’s why prosecutors asked a bunch of witnesses about it.

Update: Hugo Lowell’s version of this includes important details (the NYT also got several of these):

  1. The meeting in question was in July 2021.
  2. The recording came from Margo Martin, whose devices prosecutors obtained and imaged.
  3. The actual document in question predates Mark Milley’s tenure as CJS.
  4. Trump’s lawyers claim a document matching this description was among those returned to the Archives.
  5. Prosecutors have shown the actual document to grand jury witnesses.

The Espionage Act Evidence WaPo Spins as Obstruction Evidence

The WaPo, with Devlin Barrett as lead byline and Mar-a-Lago Trump-whisperer Josh Dawsey next, has a report describing either new evidence or more evidence of obstruction in the stolen documents case.

Some of it, such as that investigators “now suspect that boxes including classified material were moved from Mar-a-Lago storage area after the subpoena was served,” is not new — not to investigators and not to the public. The version of the search affidavit released on September 14 showed that on June 24 investigators subpoenaed the surveillance footage for the storage room and at least one other, still-redacted location, going back to January 10, 2022, long before subpoena for documents with classification marks was served on May 11. So unless Trump withheld surveillance footage, then DOJ has known since early July 2022 on what specific dates boxes were moved. And a redacted part of the affidavit explains the probable cause the FBI had in August that there might be classified documents in Trump’s residential suite.

In other words, much of what WaPo describes is that DOJ has obtained substantial evidence since August to prove the probable cause suspicions already laid out in their August warrant affidavit. You don’t search the former President’s beach resort without awfully good probable cause, and they were able to show substantial reason to believe that Trump had boxes moved to his residence after he received the May 11 subpoena, where he sorted out some he wanted to keep, eight months ago.

They’ve just gotten a whole lot more proof that they were right, since.

Other parts of the story do describe previously unknown (to us, at least) details, and those may be significantly more important for Trump’s fate. The most intriguing, to me, is that witnesses are being asked about Trump’s obsession with Mark Milley.

Investigators have also asked witnesses if Trump showed a particular interest in material relating to Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, people familiar with those interviews said. Milley was appointed by Trump but drew scorn and criticism from Trump and his supporters after a series of revelations in books about Milley’s efforts to rein in Trump toward the end of his term. In 2021, Trump repeatedly complained publicly about Milley, calling him an “idiot.”

The people did not say whether investigators specified what material related to Milley they were focused on. The Post could not determine what has led prosecutors to press some witnesses on those specific points or how relevant they may be to the overall picture that Smith’s team is trying to build of Trump’s actions and intent.

Remember that reports on investigations, especially ones that include Mar-a-Lago court reporters, often amount to witnesses attempting to share questions they’ve been asked with other witnesses or lawyers. Trump’s team has no idea what kinds of classified items were seized. This detail suggests that among the classified documents seized are a document or documents pertaining to Milley.

According to Bobs Woodward and Costa in Peril, Milley called China twice in the last months of the Trump administration to reassure his counterpart that the US was not going to attack China without some build-up first.

On Friday, October 30, four days before the election, Chairman Milley examined the latest sensitive intelligence. What he read was alarming: The Chinese believed the United States was going to attack them.

Milley knew it was untrue. But the Chinese were on high alert, and whenever a superpower is on high alert, the risk of war escalates. Asian media reports were filled with rumors and talk of tensions between the two countries over the Freedom of Navigation exercises in the South China Sea, where the U.S. Navy routinely sails ships in areas to challenge maritime claims by the Chinese and promote freedom of the seas.

There were suggestions that Trump might want to manufacture a “Wag the Dog” war before the election so he could rally the voters and beat Biden.

[snip]

This was such a moment. While he often put a hold on or stopped various tactical and routine U.S. military exercises that could look provocative to the other side or be misinterpreted, this was not a time for just a hold. He arranged a call with General Li.

Trump was attacking China on the campaign trail at every turn, blaming them for the coronavirus. “I beat this crazy, horrible China virus,” he told Fox News on October 11. Milley knew the Chinese might not know where the politics ended and possible action began.

To give the call with Li a more routine flavor, Milley first raised mundane issues like the staff-to-staff communications and methods for making sure they could always rapidly reach each other.

Finally, getting to the point, Milley said, “General Li, I want to assure you that the American government is stable and everything is going to be okay. We are not going to attack or conduct any kinetic operations against you.

“General Li, you and I have known each other for now five years. If we’re going to attack, I’m going to call you ahead of time. It’s not going to be a surprise. It’s not going to be a bolt out of the blue.

The two Bobs also described how, in the days after January 6, Milley reviewed nuclear launch procedures with senior officers of the National Mission Command Center to make sure he would be in the loop if Trump ordered the use of nukes.

Without providing a reason, Milley said he wanted to go over the procedures and process for launching nuclear weapons.

Only the president could give the order, he said. But then he made clear that he, the chairman of the JCS, must be directly involved. Under current procedure, there was supposed to be a voice conference call on a secure network that would include the secretary of defense, the JCS chairman and lawyers.

“If you get calls,” Milley said, “no matter who they’re from, there’s a process here, there’s a procedure. No matter what you’re told, you do the procedure. You do the process. And I’m part of that procedure. You’ve got to make sure that the right people are on the net.”

If there was any doubt what he was emphasizing, he added, “You just make sure that I’m on this net. “Don’t forget. Just don’t forget.”

He said that his statements applied to any order for military action, not just the use of nuclear weapons. He had to be in the loop.

Since these details about Milley came out, Trump and his frothers have claimed Milley committed treason, in concert with Nancy Pelosi (who had expressed concerns to Milley about the safety of America’s nuclear arsenal).

The attack on Milley is the same kind of manufactured grievance — often cultivated by investigation witness Kash Patel (who was DOD Chief of Staff during the transition) — as the Russian investigation. That other inflated grievance led Trump to compile a dumbass binder of sensitive documents that didn’t substantiate his grievances. If Trump did the same with Milley, either before or after he left office, those documents might include highly sensitive documents, including SIGINT reports about China’s response to Milley’s contacts.

If DOJ were ever to charge Trump for refusing to give back classified documents under 18 USC 793(e), DOJ would select a subset of the documents to charge, probably from among those seized in August. They would pick those that, if declassified for trial, would not do new damage to national security, documents that would allow prosecutors to tell a compelling story at trial. And given WaPo’s report, there’s good reason to think there’s a story they think they could tell about documents that may be part of Trump’s grievance campaign against Milley.

WaPo also described that witnesses are being asked whether Trump shared documents, including a map, with donors.

As investigators piece together what happened in May and June of last year, they have been asking witnesses if Trump showed classified documents, including maps, to political donors, people familiar with those conversations said.

According to the story, communications from Trump’s former Executive Assistant, Molly Michael, have been key for investigators.

[A]uthorities have another category of evidence that they consider particularly helpful as they reconstruct events from last spring: emails and texts of Molly Michael, an assistant to the former president who followed him from the White House to Florida before she eventually left that job last year. Michael’s written communications have provided investigators with a detailed understanding of the day-to-day activity at Mar-a-Lago at critical moments, these people said.

Michael is likely the person in whose desk drawer at least two of the classified documents seized in August were found: the two “compiled” with messages from a pollster, a faith leader, and a book author, the kind of document you would show to donors. That document, which combines two classified documents obtained before Trump left the White House with messages from after he left, is the kind of smoking gun that shows Trump didn’t just hoard documents because of ego (as Barrett reported even after the existence of this document was made public), but because he was putting classified documents to his own personal use. We learned back in November that there was evidence that Trump had used two classified documents in what sounds like a campaign document. Perhaps one of those classified documents was a map (of Israel? of Ukraine?).

Whatever it is, this is the kind of story prosecutors might like to tell at stolen classified document trials, not just because it would show Trump putting the nation’s secrets to his own personal gain and sharing classified documents with people who never had clearance, but because it would be proof that people on Trump’s team knew of and accessed documents after they lost their need to access such documents. This document would go a long way to proving that Trump didn’t just hoard classified documents out of negligence (which is currently the explanation why both Joe Biden and Mike Pence did), but because he wanted to make use of what he took.

Molly Michael is also the person who ordered a more junior aide to make a digital copy of Trump’s schedules from when he was President, an order that led to documents with classification markings being loaded to a laptop and likely to the cloud. That’s another example of the kind of exploitation of classified documents that would make a good story at trial.

It’s also the kind of story that could expose Michael herself to Espionage Act charges, such that she might work hard to minimize her own exposure. And yes, because she was Trump’s Executive Assistant, both at the White House and after he moved back to Mar-a-Lago, she likely can explain a lot about how Trump used documents he took from the White House and brought to Mar-a-Lago, including documents used as part of his political campaigning afterwards.

Without conceding it was incorrect, WaPo notes that in November, after it was already public that Trump had self-interested reason to refuse to return documents, it reported it was all just ego (it now attributes that conclusion entirely to what Trump told his aides, not — as claimed in the first line of last fall’s story — what “Federal agents and prosecutors have come to believe”).

Such alleged conduct could demonstrate Trump’s habits when it came to classified documents, and what may have motivated him to want to keep the papers. The Post has previously reported that Trump told aides he did not want to return documents and other items from his presidency — which by law are supposed to remain in government custody — because he believed they belonged to him.

Even in a story describing prosecutors collecting evidence about at least two stories about classified records that they might tell at a trial, the WaPo remarkably suggests to readers that obstruction is the primary crime being investigated here.

The application for court approval for that search said agents were pursuing evidence of violations of statutes including 18 USC 1519, which makes it a crime to alter, destroy, mutilate or conceal a document or tangible object “with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency.”

A key element in most obstruction cases is intent, because to bring such a charge, prosecutors have to be able to show that whatever actions were taken were done to try to hinder or block an investigation. In the Trump case, prosecutors and federal agents are trying to gather any evidence pointing to the motivation for Trump’s actions.

[snip]

Investigators have also amassed evidence indicating that Trump told others to mislead government officials in early 2022, before the subpoena, when the National Archives and Records Administration was working with the Justice Department to try to recover a wide range of papers, many of them not classified, from Trump’s time as president, the people familiar with the investigation said. While such alleged conduct may not constitute a crime, it could serve as evidence of the former president’s intent.

By treating this as only an obstruction investigation, WaPo incorrectly claims that lying to NARA (as opposed to the FBI) could not be part of a crime.

Here’s my attempt to lay out the elements of offense of both crimes — what prosecutors would have to prove at trial (I wrote more about the elements of an 18 USC 793e charge here and here).

To prove obstruction, DOJ would focus on the things of which — WaPo describes — Jack Smith’s team has developed substantial proof. Most conservatively, they would pertain to a grand jury investigation, because that application would be uncontroversial. After DOJ sent Trump a grand jury subpoena (which would be presented at trial as proof that Trump had notice of the grand jury investigation, his knowledge of which Evan Corcoran’s recent testimony would further corroborate), Trump took steps to hide documents and thereby prevent full compliance with that subpoena, and so thwarted a grand jury investigation. That’s your obstruction charge.

DOJ could charge a second act of obstruction tied to NARA’s effort to recover documents as part of its proper administration of the Presidential Records Act. But such an application would be guaranteed to be appealed. So the safer route would be to charge behavior that post-dates Trump’s knowledge of the grand jury investigation (and indeed, WaPo describes a close focus on events that took place starting last May).

But Trump’s longer effort to deceive the government in order to hoard documents is proof of 18 USC 793(e). To prove that, DOJ would need to prove that the government, whether NARA or FBI, told Trump he was not authorized to have documents covered by the Presidential Records Act, a subset of which would include documents with classification marks. They would need to show that Trump had been told about why he needed to protect classified records, which Trump’s former White House counsels and Staff Secretary have described (and documented) doing. For good measure they would show that Jay Bratt affirmatively told Trump that he had been (and, the August search would prove, was still) storing classified documents in places not authorized for such storage.

To prove 18 USC 793(e) at trial, you would need to describe specific documents Trump refused to give back and explain to a jury why they fit the definition of National Defense Information, material that remained closely held that, if released, could do damage to the US. That may be why they’re asking questions about Trump’s obsession with Milley or sharing maps with donors: because it’s part of the story that prosecutors would tell at trial, if they were to charge 18 USC 793.

All of which is to say that WaPo not only reported that DOJ has collected more evidence to prove what DOJ already suspected when they did the search on August 8, but they’ve been collecting information that would go beyond that, to a hypothetical Espionage Act charge.

Charging a former President with violating the Espionage Act is still an awfully big lift, and in the same way that charging obstruction for impeding NARA’s proper administration of the Presidential Records Act would invite an appeal, charging 18 USC 793(e) in DC would invite a challenge on venue (and charging it in Florida would risk spending the next three years fighting Aileen Cannon). But in addition to developing more evidence to prove the suspicions that they already substantiated in August, WaPo describes Jack Smith’s team asking the kinds of questions — about specific documents that might be charged as individual violations of the Espionage Act — that you’d ask before charging it.

Asking whether Trump (or Molly Michael or anyone else from Trump’s PAC) showed donors a classified map in a package also showing polling and a faith leader’s support for Trump’s policy in an attempt to raise money doesn’t get you evidence of obstruction. If the map is classified, though, it gets you proof that Trump not only knew he had classified documents, but had turned to profiting off of them.

That’s not a guarantee they’re going to charge 18 USC 793e. It’s a pretty good sign they’re collecting evidence that might support that charge.

Update: CNN has a much more measured story, describing how Jack Smith’s team is locking in the voluntary testimony they got last summer.

The new details come amid signs the Justice Department is taking steps typical of near the end of an investigation.

The recent investigative activity before a federal grand jury in Washington, DC, also includes subpoenaing witnesses in March and April who had previously spoken to investigators, the sources said. While the FBI interviewed many aides and workers at Mar-a-Lago nearly a year ago voluntarily, grand jury appearances are transcribed and under-oath – an indication the prosecutors are locking in witness testimony.

[snip]

The grand jury activity – expected to continue to occur at a frequent clip in the coming weeks – builds upon several known reactions Trump and others around him had to the DOJ’s attempt to reclaim classified records last year, and which prompted the FBI to obtain a judge’s approval to search Mar-a-Lago in August for classified records.

Some of the evidence the DOJ has used to persuade a judge to allow that search is still under seal.

It also notes that Smith is still pursuing how a box including documents with classification marks came to be brought back to Mar-a-Lago after the search.

Since then, the Justice Department has pushed for answers around how a box with classified records ended up in Trump’s office after the FBI search took place.

House January 6 Committee: Public Hearings – Day 1 [UPDATE-1]

[NB: Any updates will be published at the bottom of this post. /~Rayne]

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 9, 2022, at 8:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1533876297926991877

MSNBC will carry coverage on their cable network with coverage beginning at 7:00 p.m. ET as well as on MSNBC’s Maddow Show podcast feed. Details at this link.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Fox News is not carrying this on their main network. Their weeknight programming including Tucker Carlson’s screed will continue as usual and will likely carry counterprogramming.

Twitter accounts live tweeting the hearing tonight:

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1535034512639512576

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1535050143879266306

Chris Geidner-Grid News: https://twitter.com/chrisgeidner/status/1535052708922937345

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1534955708881457154

If you know of any other credible source tweeting the coverage, please share a link in comments.

Marcy will not be live tweeting as the hearing begins 2:00 a.m. IST/1:00 a.m. UTC/GMT. She’ll have a post Friday morning Eastern Time. Do make sure to read her hearing prep post, though.

An agenda for this evening’s hearing has not been published on the committee’s website.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

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If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

UPDATE-1 — 7:30 P.M. ET 10-JUN-2022 —

According to Scott MacFarlane-CBS there will be a total of six House J6 Committee hearings this month.

House J6 Committee hearing schedule (as of eve 6/10/2022):

Monday June 13 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Wednesday June 15 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Thursday June 16 — Hearing: On the January 6th Investigation
1:00 PM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Tuesday June 21 — Hearing: On the January 6th Investigation
**10:00 AM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Thursday June 23 — Hearing: On the January 6th Investigation
**8:00 PM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Date, time, and location of the next three hearings have been published on the U.S. House of Representatives’ calendar. The last two have not yet been confirmed and published.

Peril: What’s Epilogue to Prologue?

[NB: Check the byline, thanks. /~Rayne]

Guess what book came in the mail last weekend?

PROLOGUE
Two days after the January 6, 2021, violent assault on the United States Capitol by supporters of President Donald Trump, General Mark Milley, the nation’s senior military officer and chairman of the Joint Chiefs of Staff, placed an urgent call on a top secret, back-channel line at 7:03 a.m. to his Chinese counterpart, General Li Zuocheng, chief of the Joint Staff of the People’s Liberation Army.

Milley knew from extensive reports that Li and the Chinese leadership were stunned and disoriented by the televised images of the unprecedented attack on the American Legislature.

Li fired off questions to Milley. Was the American superpower unstable? Collapsing? What was going on? Was the U.S. military going to do something?

“Things may look unsteady,” Milley said, trying to calm Li, whom he had known for five years. “But that’s the nature of democracy, General Li. We are 100 percent steady. Everything’s fine. But democracy can be sloppy sometimes.”

It took an hour and a half—45 minutes of substance due to the necessary use of interpreters—to try to assure him.

When Milley hung up, he was convinced the situation was grave. Li remained unusually rattled, putting the two nations on the knife-edge of disaster.

That’s the first six paragraphs of the book Peril‘s fucking prologue.

Prologues are typically use to establish a frame or perspective, providing additional exposition for the reader before they enter the main narrative. They’re far more common in fiction than nonfiction.

This isn’t a true prologue. It’s a chapter from an attempted autogolpe told out of chronological sequence to grab the reader’s attention and make them stay with the narrative.

I’ll admit right now I’ve only just cracked the book and I’m juggling it with other reading I’m doing, but Jesus fucking Christ no wonder the media sat up from its moribund position and covered General Milley’s preemptive diplomacy from Peril’s prologue before its commercial release date September 21.

No wonder, too, why the media immediately went on a tear about Milley’s call to China. Peril’s prologue ensured this would happen.

Sadly, I’m juggling more than other reading right now, so I haven’t been able to catch but snippets of the House Armed Services Committee hearings this past week during which some of the substance in Peril was addressed.

~ ~ ~

It’s surprising and yet unsurprising that the media blew up about General Milley’s defense-by-diplomacy immediately following the January 6 insurrection.

First, they bit on the lede with which Costa and Woodward baited them, which means the prologue worked as a hook, but it also reveals a massive hole in reporting following January 6.

Why did the public need to wait until Costa and Woodward published a book NINE MONTHS AFTER the insurrection to learn the Chairman of the Joint Chiefs of Staff was compelled to engage in diplomacy with his Chinese counterpart?

Second, the media was surprised at the level of concern regarding a peaceful transition of power, but not until NINE MONTHS AFTER the insurrection.

Why weren’t they paying attention to the National Task Force on Election Crises five months before the election and seven months before the insurrection, especially after Trump refused to concede the election, called Georgia’s secretary of state to lean on the state to “find the votes” necessary for Trump to win, and after the January 6 insurrection?

And why did so many media outlets ignore or forget that only Congress has the power to declare war, and that any attack on another nation-state without authorization by Congress would be unlawful?

Lastly, why wasn’t Milley’s oath of office — the same oath taken by all members of the military, similar to the oath taken by federal employees and elected officials — taken into consideration by journalists covering Milley’s diplomatic outreach?

I [name], having been appointed an officer in the Army of the United States, as indicated above in the grade of Second Lieutenant, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

Support and defend the Constitution of the United States.

Against all enemies, foreign and domestic.

So little examination of whether Milley was defending the Constitution and against which enemies.

~ ~ ~

I can’t say I’m fond of Bob Woodward. Some of his work is whitewashing, wallpapering — like Bush At War, which was little more than a massive beat sweetener published to assure ongoing access to the Bush White House.

But therein is the crux of the problem Peril presents us: access journalism has failed and continues to fail us.

There’s an article in The New York Times today which focuses on questionable conservative attorney John Eastman whose role in drafting the plan to overthrow the 2020 election was disclosed and thinly outlined in Peril.

Why after all of the NYT’s access reporting during the Trump administration did we have to hear about Eastman from Woodward and Costa and not from the NYT?

Most especially Maggie Haberman who shares the byline on today’s article with Michael Schmidt — why is she covering Eastman now after a book relying on access journalism was published by other journalists?

Was Haberman’s access journalism even worse than believed?

This graf from today’s NYT article just sets my teeth to grinding:

Then, after the November election, Mr. Eastman wrote the memo for which he is now best known, laying out steps that vice president Mike Pence could take to keep Mr. Trump in power — measures Democrats and anti-Trump Republicans have likened to a blueprint for a coup.

Wow, how did Eastman become “best known” for that How-to-Coup memo?

In a two-page memo written by Mr. Eastman that had been circulated to the White House in the days before the certification — revealed in the new book “Peril” by the Washington Post reporters Bob Woodward and Robert Costa — Mr. Eastman said that Mr. Pence as vice president was “the ultimate arbiter” of the election, essentially saying he had the power to determine who won, and that “we should take all of our actions with that in mind.”

Oh. Huh.

~ ~ ~

There are a couple pod casts worth listening to which cover some of the topics addressed in Peril.

While some of the content of this conversation between Nordlinger and Costa appears in Peril, it’s not as obvious as having the author tell you about the subject matter.

Above The Law blog founder David Lat was the featured guest on KCRW’s All the Presidents’ Lawyers podcast hosted by Ken White (a.k.a. Popehat). While the topic is “Trump Derangement Syndrome” covering four lawyers who appear to have gone off the deep end in the service of Donald Trump, one of the lawyers discussed is John Eastman.

Of particular note: the exchange beginning about 9:00 minute mark into the 33:14 program in regards to the Brandenburg standard for incitement of violence.

It’s also worth following the Twitter account of Peril’s author Bob Costa (@costareports); he tweets more about the content and background of Peril as well as new related reporting.

This tweet is particularly important: the insurrection isn’t over. It’s ongoing until the conspirators are stopped — all of them.

It’s this challenge which really makes me angry about Peril and its questionable prologue: the focus became Milley who was one of a few people who prevented January 6th’s aftermath from being so much worse.

The real focus should be that U.S. democracy remains under steady attack with the January 6 insurrection potentially the Krystallnacht which organizes American fascists.

~ ~ ~

I may post more as I continue reading Peril.

If you’re reading Peril as well, feel free to share your takes in comments below.

There May Well Have Been an Intelligence Failure in Afghanistan

Almost as quickly as Republicans and Democrats rushed to blame the other for the humiliating fall of Afghanistan, and as quickly as bipartisan NeoCons and bipartisan anti-Imperialists blamed the other for victory of the Taliban, the Intelligence Community and DOD have rushed to blame each other.

This story is just one example, but there are many.

In 2019, U.S. spy agencies delivered a sweeping assessment known as a National Intelligence Estimate of the conflict that warned many of America’s often-stated objectives were in jeopardy even with a continued U.S. military presence, and without direct American backing all but destined to collapse.

“We would run into really serious battles with the Pentagon, which would say, ‘We’ve got boots on the ground, we know the truth,’ ” said a former senior U.S. intelligence official.

The diverging views on the war were a reflection of the institutional predispositions of military planners groomed to accept even the most daunting missions and find ways to deliver results.

In Afghanistan, “you had good people who tried mightily believing they could do it,” the former intelligence official said. “And in the end are forced to face the reality that they couldn’t.”

One thing all these parties are fighting over is whether there was an intelligence failure.

Mike Morell, like many of the spooks being interviewed, says it wasn’t his fault.

Michael Morell, the former acting and deputy director of the CIA wrote on Twitter: “What is happening in Afghanistan is not the result of an intelligence failure. It is the result of numerous policy failures by multiple administrations. Of all the players over the years, the Intelligence Community by far has seen the situation in Afghanistan most accurately.”

And he’s right: Anyone who didn’t know, going back well over a decade, that an Afghan regime would collapse without US backing simply wasn’t paying attention.

That said, just days ago the most dire intelligence predicting that the Afghan government would fall to the Taliban spoke in terms of a month, not a weekend.

The Biden administration is preparing for Afghanistan’s capital to fall far sooner than feared only weeks ago, as a rapid disintegration of security has prompted the revision of an already stark intelligence assessment predicting Kabul could be overrun within six to 12 months of the U.S. military departing, according to current and former U.S. officials familiar with the matter.

One official, who like others spoke on the condition of anonymity due to the issue’s sensitivity, said Tuesday that the U.S. military now assesses a collapse could occur within 90 days. Others said it could happen within a month. Some officials said that although they were not authorized to discuss the assessment, they see the situation in Afghanistan as more dire than it was in June, when intelligence officials assessed a fall could come as soon as six months after the withdrawal of the U.S. military.

At the same time, spooks saying that they didn’t know the effect that a quick withdrawal would have on the timing, even though others note the timing has always been known — including by the Taliban and our regional adversaries. That is, the IC didn’t fail to warn about how fragile the Afghan government was, but they seem to have been surprised by the snowball effect.

There are discrete decisions that do require accountability, such as the decision — apparently made by Mark Milley — that keeping Bagram running until we exited was not “tactically necessary.”

[Congressman Doug] Lamborn asks if it is “at all possible” for the United States to keep open Bagram Airfield. Gen. Milley responds that it is not tactically necessary.

If things get really bad in the days ahead, it will be because US armed forces rushed in to maintain order while the US evacuates are working at the airport rather than Bagram, which is far easier to secure.

But I do wonder whether there was not, in fact, a really dire intelligence failure having largely to do with how Ashraf Ghani and other Afghan leaders were paid off to cede power.

On top of weakened morale and lack of air support, the best explanation for the Taliban’s quick success has to do with “surrenders” that became the only viable option for Afghan soldiers after Trump’s deal with the Taliban last year.

The spectacular collapse of Afghanistan’s military that allowed Taliban fighters to walk into the Afghan capital Sunday despite 20 years of training and billions of dollars in American aid began with a series of deals brokered in rural villages between the militant group and some of the Afghan government’s lowest-ranking officials.

The deals, initially offered early last year, were often described by Afghan officials as cease-fires, but Taliban leaders were in fact offering money in exchange for government forces to hand over their weapons, according to an Afghan officer and a U.S. official.

Over the next year and a half, the meetings advanced to the district level and then rapidly on to provincial capitals, culminating in a breathtaking series of negotiated surrenders by government forces, according to interviews with more than a dozen Afghan officers, police, special operations troops and other soldiers.

[snip]

The negotiated surrenders to the Taliban slowly gained pace in the months following the Doha deal, according to a U.S. official and an Afghan officer. Then, after President Biden announced in April that U.S. forces would withdraw from Afghanistan this summer without conditions, the capitulations began to snowball.

As the militants expanded their control, government-held districts increasingly fell without a fight. Kunduz, the first key city overrun by the militants, was captured a week ago. Days of negotiations mediated by tribal elders resulted in a surrender deal that handed over the last government-controlled base to the Taliban.

Soon after, negotiations in the western province of Herat yielded the resignation of the governor, top Interior Ministry and intelligence officials and hundreds of troops. The deal was concluded in a single night.

This, too, was obviously known and knowable.

What I wonder is how far up in the Afghan government such discussions went, and if that was also known.

A really worthwhile thread from Afghanistan’s former Central Bank Governor, Ajmal Ahmady, describes rumors that the decision came from higher up.

There were multiple rumors that directions to not fight were somehow coming from above. This has been repeated by Atta Noor and Ismael Khan. Seems difficult to believe, but there remains a suspicion as to why ANSF left posts so quickly. There is something left unexplained

It describes how he kept going to work even while learning that Ghani had fled. 

On Saturday night, my family called to say that most government had already left. I was dumbfounded. A security assessment accurately forecast Taliban arrival to Kabul within 36 hours and its fall within 56 hours I got worried & purchased tickets for Monday as a precaution

[snip]

Saw VP Danish leaving – reportedly for Qatar. By then it was rumored that VP Saleh had left. Ministers + others were waiting for a Fly Dubai & Emirates flights. Both were cancelled I secured a Kam Air flight Sunday 7pm. Then the floor fell: the President had already left

Almost immediately after Ghani fled, Russian news sources reported that he had taken mountains of cash with him.

Russia’s embassy in Kabul said on Monday that Afghan President Ashraf Ghani had fled the country with four cars and a helicopter full of cash and had to leave some money behind as it would not all fit in, the RIA news agency reported.

That’s not unlikely — it’s just rather curious that Russia was the first to know of it.

Even as and because that happened, a diplomatic effort to negotiate a transitional government failed.

The weeks leading up to Kabul’s collapse saw a flurry of diplomatic activity by the U.S. and its allies in Qatar aimed at heading off exactly the chaotic scenes in the Afghan capital that have so horrified the world and put Joe Biden’s presidency on the defensive.

Among those efforts was a tantalizing agreement that could have guaranteed calm. Afghan and Taliban negotiators tentatively reached a deal in which all sides would declare a two-week cease-fire in exchange for President Ashraf Ghani’s resignation and the start of talks on setting up a transitional government, according to two people familiar with the matter, who asked not to be identified discussing private deliberations.

That opportunity, which hasn’t been previously reported, was lost when Ghani fled the country, according to the people. Ghani’s decision to leave Afghanistan — he said he did so to avoid a bloodbath — surprised his negotiating team in Doha, American diplomats and even his chief of staff and other top aides, said the people.

This, it seems to me, is where the real intelligence failure begins. Not even Ghani’s own ministers, according to current reports, knew he was going to flee, possibly with a chunk of cash.

And that has repercussions that may explain the rest. In his speech on Afghanistan last night, Biden described Ghani refusing to do any of the things Biden asked for in June and July. Of particular interest, Ghani seems to have refused to engage with the diplomatic effort that was undermined by Ghani’s capitulation.

I always promised the American people that I will be straight with you. The truth is: This did unfold more quickly than we had anticipated.

So what’s happened? Afghanistan political leaders gave up and fled the country. The Afghan military collapsed, sometimes without trying to fight.

[snip]

When I hosted President Ghani and Chairman Abdullah at the White House in June and again when I spoke by phone to Ghani in July, we had very frank conversations.  We talked about how Afghanistan should prepare to fight their civil wars after the U.S. military departed, to clean up the corruption in government so the government could function for the Afghan people.  We talked extensively about the need for Afghan leaders to unite politically.

They failed to do any of that.

I also urged them to engage in diplomacy, to seek a political settlement with the Taliban.  This advice was flatly refused.  Mr. Ghani insisted the Afghan forces would fight, but obviously he was wrong.

No one can claim to be surprised that the Afghan military folded. That it would has been clear for over a decade.

There are real questions, though, about whether the intelligence community knew how far up the Afghan government the plans to capitulate in exchange for payment went. And that question drives further intelligence questions. Ashraf Ghani has been privy to our Afghan intelligence collection. Hamid Karzai, who is playing a clear broker role but it’s not yet clear with and for whom, likewise was privy to a lot of our intelligence collection. The Taliban have had twenty years to learn how to evade our surveillance. Russia has been stealing key technical data for the last decade, focusing closely on our Afghan operations, and they seem quite chuffed with recent events.

If some or all those people have been working in concert, and may well have been since Trump acceded to this plan last year, it would be child’s play for them to hide from US intelligence how far up the chain of command would cede to the Taliban, if not actively disinform US intelligence. And that, in turn, would make it far easier to take over the country so quickly that the Taliban were even shocked.

If that happened, then it was a real intelligence failure that explains why the US wasn’t better prepared for the collapse of the Afghan government, even without excusing self-serving claims that the Afghan military might have lasted a week or a month or a year longer than they did.

Two One-Time Devin Nunes Flunkies Under Investigation for Leaks

Michael Ellis, the Devin Nunes flunky who had been installed as NSA General Counsel over more qualified people, resigned from NSA after being placed on leave since Inauguration Day. I hadn’t realized until I read Ellen Nakashima’s report on Ellis’ resignation that he was being investigated for leaking classified information, though Catherine Herridge reported that investigation in real time, the very same day that Ellis’ attorney wrote NSA inquiring about the investigation.

Meanwhile, a long David Ignatius profile of another Nunes flunky, Kash Patel, mentions that he, too, is under investigation for leaking classified information.

Patel repeatedly pressed intelligence agencies to release secrets that, in his view, showed that the president was being persecuted unfairly by critics. Ironically, he is now facing Justice Department investigation for possible improper disclosure of classified information, according to two knowledgeable sources who requested anonymity because of the sensitivity of the probe. The sources said the investigation resulted from a complaint made this year by an intelligence agency, but wouldn’t provide additional details.

Both of these men (along with a third Nunes flunky, Derek Harvey) have been a real threat to national security and both have a history of writing crappy reports for Nunes (recent reporting reminds that Ellis was the author of an unnecessarily shitty Edward Snowden report, for example). There’s little doubt they have released the kinds of material that have never before been released, but much of that would either be legal and/or protected by Speech and Debate.

But the fact that both are being investigated for leaking classified information raises questions whether leak investigations are just being used as an easy way to take out intelligence community critics, whether they’re both suspected of leaking the same information, or whether there’s more there.

The Ignatius story, in particular, is of interest, not least because he’s the guy who first reported Mike Flynn’s conversation with Sergey Kislyak in a seemingly sanctioned leak, making this report a kind of book-end to the Trump Administration. All the more so given that Ignatius not only notes the sensitivity of the probe into Patel, but then tells a story that likely relies on classified information of how Patel’s incompetence almost blew up a SEAL rescue mission in Niger.

Anger toward Patel within the national security bureaucracy mounted after an Oct. 31, 2020, hostage rescue mission in Nigeria. The incident, never previously reported in detail, was described by four high-level sources.

It was a rescue mission that was nearly aborted partly because of inadequate coordination by Patel. SEAL Team Six had been assigned to rescue 27-year-old Philip Walton, a missionary’s son who had been kidnapped by gunmen in Niger, near the border with Nigeria. Patel, as a senior counterterrorism adviser, had assured colleagues that the mission had a green light, according to several sources. The SEALs were ready to parachute into the rescue site from high altitude (one source estimated 30,000 feet) when there was a last-minute hitch.

But as the SEALs were about to jump, military commanders and State Department officials realized that one necessary item hadn’t been completed: The Nigerian government hadn’t been informed prior to the operation inside their country, as required.

A frantic last-minute effort to obtain the necessary permission ensued. The SEAL team’s aircraft held over the target, flying in a racetrack pattern, for about 45 minutes while the State Department tried to locate a Nigerian national security official who could receive the official notice. Finally, just 15 minutes before the operational window closed, the Nigerians were given word, the SEALs parachuted down, and the hostage was rescued.

Secretary of State Mike Pompeo and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, were angry that, in their view, Patel had prematurely said the operation was fully cleared, according to knowledgeable officials. One senior Pentagon official said he was “incensed” at Patel. A second senior Pentagon official described Patel’s actions as potentially “dangerous” for the SEALs.

The attack on Patel’s role in the hostage rescue may be a signal about what Patel is suspected of leaking.

While Ignatius provides no indication of what Patel is suspected of leaking, the WaPo columnist does link to an interview Patel did with Aaron Maté. The interview is about what you’d expect from a propagandist interviewing a propagandist.  Patel makes a slew of false claims that Maté encourages: the purpose of FISA, what normally goes in FISA applications, the intelligence against Carter Page, what servers the FBI obtained as part of its investigation into the hack (Maté still ascribes the single server fallacy!), what Crowdstrike actually had access to, what Bruce Ohr’s FBI interviews actually showed. Perhaps the most hysterical part of the interview is where Patel claimed that the way to conduct an investigation is to follow the money, but Maté never asked him why HPSCI didn’t follow the money on a single Trump associate, to say nothing of Trump’s role in money laundering for Russian oligarchs.

Nevertheless, in their discussion about the Russian investigation, Patel was quite careful to avoid revealing non-public information, not even for a report he authored claiming poor tradecraft on the Intelligence Community Assessment of the Russian attack that both SSCI and John Durham have investigated and dismissed.

Maté similarly let Patel dodge really answering questions about his conduct on January 6, even though some of the biggest questions about that day pertain to why DOD delayed for three hours before reinforcing the Capitol, including why it took over 30 minutes for an order to deploy to get from Acting Secretary of Defense Christopher Miller to Guard Commander General William Walker who had been waiting on stand-by. In response to Maté’s question, Patel first repeated his selective breach of Executive Privilege to claim that Trump had already authorized Guard deployments, then answered a totally different question than the one Maté asked — not why DOD let the attack continue for 3 hours, long after it had gotten repeated requests for help, but how quickly DOD deployed the Guard after they had allowed an attack to happen across town while they watched.

We activated, from a start, the fastest augmentation and mobilization of uniformed military troops in the DC area since World War II, and we put 24,000 boots on the ground in less than 48 hours. I don’t know who’s saying we slow-rolled anything, because these are Guardsmen, they’re not active duty military.

While Patel violated Executive Privilege, there’s nothing classified about the belated Guard deployment.

It’s in-between those two conversations, though, where Patel may have succumbed to Maté’s persistent questioning about the very same topic about which Ignatius’ sources attack Patal: hostage rescues. Maté asked about a report that Patel had tried to negotiate the release of Austin Tice. Patel first responded to Maté by saying that he wouldn’t address whether Tice is alive or not. But then Maté followed up, and Patel told a self-serving story about his role in an attempt to free Tice. In it, Patel provided non-public details about his meeting with Assad representatives in Syria and may have confirmed an intercept on Bashar al-Assad.

Maté: Can you tell us anything about your discussions with Syrian officials, what they were asking from you, their level of openness to having talks with the US government?

Patel: Sure, I mean, look, that didn’t happen overnight. You know, one of President Trump’s priorities was, “go get American hostages home,” and I think we got over 50 — 53ish, hostages, detainees back — from 20-some countries maybe. Maybe a little less. But Austin Tice had been missing for, going on eight years, and we had made no headway, really, on it, so we made it a priority. We started working with our counterparts in the region. That trip was almost 18 months in the making. And we finally were able to land a meeting in Damascus because I told them, I said, “I’ll come see you. You send someone who can represent President Assad directly, because I can represent President Trump directly on this matter. And let’s go sit down.” And they said, “okay, come to Damascus.” And I don’t know if they thought we would show up or not. We did. And we were very clear. We said, “look, I understand I’m not getting Austin home on this trip, but I would like a proof of life. What would you like in return for that?” We had very frank conversations. They said, we want X amount of movement for the United States military. Troops stuff, and this and that. And I said, “look, all of that’s on the table. We can discuss all those things. I need a proof of life.” And they said they would take it back to Assad. Which they did. I know they did that. And then, I think shortly thereafter, I switched over to the Department of Defense, and tried to continue that mission, but, um, that one was one I just, unfortunately, didn’t succeed on. [my emphasis]

The most likely way that Patel would come to learn, with certainty, that whatever go-betweens he met with in Damascus actually did report back to Assad would be via an NSA or CIA intercept. If that is how he learned, then confirming that he knew Assad got a report back might have burned the intercept. Doing so with Maté at the Grayzone, which personally and as an outlet produce a lot of Assad apology, might be particularly sensitive. And the ease with which Maté appealed to Patel’s ego to get him to reveal these details would raise real questions about whether Patel played a role in the earlier WSJ story about the meeting, which was published on October 18, days before Patel almost fucked up the October 31 Niger mission.

That is, this Ignatius story seems like an effort to undermine Patel’s self-interested stories of heroism on hostage rescues, after he disclosed non-public details about one of them.

Which would also suggest that, whatever the merit of the investigation into Ellis (and I think GOP concerns about it have some merit), the investigation into Patel may be substantive.

Triage and Impeachment: Prioritize a Legitimate Criminal Investigation into the Wider Plot over Impeachment

I want to talk about triage in the wake of the terrorist attack on Wednesday as it affects consideration of how to hold Trump accountable for his role in it.

First, some dates:

If Mike Pence were to invoke the 25th Amendment (with the approval of a bunch of Trump’s cabinet members), it could go into effect immediately for at least four days. Trump can challenge his determination, but if the same cabinet members hold with Pence, then Trump’s disqualification remains in place for 21 more days, enough to get through Joe Biden’s inauguration.

Both the House and Senate are not in session, and can’t deviate from the existing schedule without unanimous consent, meaning Mo Brooks in the House or Josh Hawley in the Senate could single-handedly prevent any business.

Because of that, impeachment in the House can’t be started until tomorrow. Right now, Pelosi is using the threat of impeachment as leverage to try to get Pence to act (or Trump to resign, though he won’t). If that doesn’t work, then the House seems prepared to move on a single article of impeachment tied to Trump’s attempts to cheat and his incitement of the insurrection. Pelosi won’t move forward on it until she’s sure it has the votes to succeed.

Even assuming a majority of the House votes to impeach Trump, that will have no impact on his authority to pardon co-conspirators, and he’ll surely attempt to pardon himself, one way or another. Because of Wednesday’s events, he will be doing that without the assistance of Pat Cipollone, which means he’s much more likely to make his plight worse.

Impeaching this week would, however, force Republicans to cast votes before it is clear how the post-insurrection politics will work out (indeed, while Trump still has the power of the Presidency). Significantly, a number of incoming members are angry that Kevin McCarthy advised them to support the insurrection. The vote may be as much an attempt to undo complicity with Wednesday’s actions as it is anything else. Done right, impeachment may exacerbate the fractures in the GOP; done wrong, it could have the opposite effect.

If the House does impeach, then the Senate will not — barring a change of heart from Hawley and everyone else who was still willing to be part of this insurrection — take up the impeachment until January 19 (the parliamentarian has already ruled on this point). That means, the trial for impeachment either happens in Joe Biden’s first week in office, or the House holds off on sending the article of impeachment over to the Senate until Chuck Schumer deems it a worthwhile time. He can also opt to have a committee consider it, calling witnesses and accruing evidence, which will provide the Senate (where there are more Republicans aiming to distance from Trump) a way to further elaborate Trump’s role in the terrorism.

Meanwhile, by losing all access to social media except Parler and with Amazon’s decision yesterday to stop hosting Parler (which will mean it’ll stay down at least a week, until January 17), Trump’s primary mouthpieces have been shut down. There’s reason to believe that the more sophisticated insurrectionists have moved onto more secure platforms like chat rooms and Signal. While that’ll pose some challenges for law enforcement trying to prevent follow-on attacks on January 17, 19, or 20, being on such less accessible platforms will limit their ability to mobilize the kinds of masses that came out on Wednesday. Trump has lost one of the most important weapons he can wield without demanding clearly criminal behavior from others. That said, the urgency of preventing those sophisticated plotters — and a good chunk of these people have military training — from engaging in more targeted strikes needs to be a priority.

But Trump is still President, with his hand on the nuclear codes, and in charge of the chain of command that goes through a bunch of Devin Nunes flunkies at DOD. Nancy Pelosi called Chairman of the Joint Chiefs Mark Milley and come away with assurances that Trump won’t be able to deploy nukes.

Preventing an Unhinged President From Using the Nuclear Codes: This morning, I spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike. The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy.

Nevertheless that still leaves Trump in charge of the vast federal bureaucracy, which has been emptied out and the filled back up with people who could pass Johnny McEntee’s loyalty oaths to Trump.

Because this is where we’re at, I have argued that there needs to be a higher priority on getting at least Biden’s operational nominees, along with Merrick Garland, confirmed over impeaching Trump — yet — in the Senate.

We have not yet heard why DOD and DHS and the FBI — on top of the Capitol Police — failed to prevent the terrorist attack on Wednesday (I’ll have more to say about this later). It will take a year to sort out all the conflicting claims. But as we attempt, via reporting, via oversight in Congress (including impeachment), and via a criminal investigation to figure that out, those same people who failed to prevent the attack remain in place. Indeed, most of these entities have offered little to no explanation for why they failed, which is a bad sign.

Because of that, I think Biden needs to prioritize getting at least Garland and Lisa Monaco confirmed as Attorney General and Deputy Attorney General at DOJ, along with a new Acting US Attorney for DC, as soon as possible. I have two specific concerns. First, while FBI has generally been good at policing white supremacists in recent months, they failed miserably here, when it mattered most. One effect of retaliating against anyone who investigated Trump for his “collusion” with Russia has been to install people who were either Trump loyalists or really skilled at avoiding any slight to Trump. Indeed, one of the most charitable possible excuses for FBI’s delayed response is that after years of badgering, otherwise reasonable people were loathe to get involved in something that Trump defined as an election issue.

I have more specific concerns about the DC US Attorney’s office. Michael Sherwin, who has been less awful as Acting US Attorney than Timothy Shea, originally said on the record all options in the investigation that will be led out of his office were on the table, including incitement by Trump. But then someone said off the record that Trump was not a focus of the investigation. I suspect that person is Ken Kohl, who as Acting First Assistant US Attorney is in charge of the investigation and has been cited in other announcements about the investigation.

Ken Kohl at least oversaw, if not participated in, the alteration of documents to help Trump get elected. I’ve been told he’s got a long history of being both corrupt and less than competent. The decisions he will oversee in upcoming weeks could have the effect of giving people the opportunity to destroy evidence that lays out a much broader conspiracy, all while rolling out showy charges against people who were so stupid they took selfies of themselves committing crimes. We want this investigation to go beyond a slew of trespassing charges to incorporate the actual plotting that made this attack possible. It’s not clear Kohl will do that.

Even assuming that people currently in DOJ are willing to collect evidence implicating Trump, short of having a confirmed Attorney General overseeing such decisions, we’re back in the same situation Andrew McCabe was in on May 10, 2017, an Acting official trying to decide what to do in the immediate aftermath of a Trump crime. Trump’s backers have exploited the fact that McCabe made the right choices albeit in urgent conditions, and they’ve done so with the willing participation of some of the people — notably, FBI Deputy Director David Bowdich — who are currently in charge of this investigation.

I’m happy to entertain a range of possible courses going forward, so long as all of them involve holding Trump accountable to the utmost degree possible. I assume Nancy Pelosi, whatever else she’ll be doing, will also be counting the votes to understand precisely what is possible, given the schedule.

But I also know that I’d far rather have Trump and those he directly conspired with criminally charged than have an impeachment delay the thorough fumigation of a government riddled with people who may have had a role in this plot. And that’s not going to happen if the investigation is scoped in such a way in the days ahead to rule out his involvement.

Update: Here’s a much-cited interview with Michael Sherwin. He adopts all the right language (pointedly disavowing labels of sedition or coup, saying he’s just looking at crimes) and repeats his statement that if there’s evidence Trump is involved he’ll be investigated.

On Thursday you were quoted saying the conduct of “all actors” would be examined, which was interpreted to mean President Trump might face charges. Is that what you meant — the man who gave the speech at the start of the day could be looking at charges?

Look, I meant what I said before. In any criminal investigation, I don’t care if it’s a drug trafficking conspiracy case, a human trafficking case or the Capitol — all persons will be looked at, OK? If the evidence is there, great. If it’s not, you move on. But we follow the evidence. If the evidence leads to any actor that may have had a role in this and if that evidence meets the four corners of a federal charge or a local charge, we’re going to pursue it.

Update: This story describes how a senior McConnell aide called Bill Barr’s Chief of Staff who called David Bowdich who then deployed three quick reaction teams in response.

The senior McConnell adviser reached a former law firm colleague who had just left the Justice Department: Will Levi, who had served as Attorney General William P. Barr’s chief of staff.

They needed help — now, he told Levi.

From his home, Levi immediately called FBI Deputy Director David Bowdich, who was in the command center in the FBI’s Washington Field Office.

Capitol police had lost control of the building, Levi told Bowdich.

The FBI official had been hearing radio traffic of aggressive protesters pushing through the perimeter, but Levi said it had gone even further: The mob had already crashed the gates and lives were at risk.

Capitol police had said previously they didn’t need help, but Bowdich decided he couldn’t wait for a formal invitation.

He dispatched the first of three tactical teams, including one from the Washington field office to secure the safety of U.S. senators and provide whatever aid they could. He instructed two more SWAT teams to follow, including one that raced from Baltimore.

These teams typically gather at a staging area off-site to coordinate and plan, and then rush together to the area where they are needed. Bowdich told their commander there was no time.

“Get their asses over there. Go now,” he said to the first team’s commander. “We don’t have time to huddle.”

Not explained: why Bowdich was watching protestors get through the perimeter without deploying teams on his own. Again, I’m not saying he was complicit. I’m saying he has spent the last four years by letting Trump’s claims about politicization direct the Bureau, and can see how that habit might have led to a delayed response here.