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

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

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

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

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

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

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

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

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

Which Garland adopted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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What Jack Smith Didn’t Say about the January 6 Investigation

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As part of Kyle Cheney and Josh Gerstein’s summary of the Jack Smith report, they argued that “Smith [came] to Garland’s defense” regarding his conduct of the January 6 investigation before Smith was appointed, pointing to Smith’s review of certain legal fights, to include the Executive Privilege fight.

Smith comes to Garland’s defense

A common sentiment on the left is that Garland was too deferential to Trump after Joe Biden took office and failed to unleash the full might of the department on the former president for nearly two years. The delay, critics say, made it much more difficult for Smith — once he was appointed in November 2022 — to bring Trump to trial before the 2024 election.

But Smith’s report emphasized that the Justice Department was aggressively investigating leads related to Trump long before the special counsel’s tenure began. Litigation tactics by Trump and his allies, Smith argued, were the key factors that slowed the process to a crawl.

For example, Twitter, newly purchased by Elon Musk, delayed Smith’s effort to access Trump’s account data for weeks despite a court order that ultimately resulted in the company being held in contempt and fined $350,000.

It took Smith more than a year to obtain text messages between Rep. Scott Perry (R-Pa.) and Trump DOJ official Jeffrey Clark. And the department spent months fighting to access communications of John Eastman, a lawyer who helped devise Trump’s last-ditch efforts to remain in power.

The most protracted battles of all stemmed from Trump’s “broad invocation of executive privilege to try to prevent witnesses from providing evidence,” Smith wrote. It took months of secretive legal proceedings to secure testimony from Trump White House aides such as Mark Meadows, Dan Scavino and Pat Cipollone. Former Vice President Mike Pence also resisted testifying until a court ordered him to reveal some — but not all — details about his interactions with Trump. Smith noted that judges broadly rejected Trump’s privilege claims, with one holding that he was engaged in an “obvious” effort to delay the investigation.

That led to Garland whingers like Ryan Goodman to imagine he knows better than Cheney and Gerstein, who between them have been among the most aggressive in liberating and reporting on documentation pertaining to the investigation. Goodman pointed to a misleading passage in Smith’s report which dates the Executive Privilege fight to August 2022, which describes when “executive privilege litigation” occurred (my emphasis).

Most of the executive privilege litigation in this case took place in five sealed proceedings between August 2022 and March 2023 concerning the testimony of fourteen witnesses in total. See Media Access ECF No. 32 (notice attaching district court orders and memorandum opinions). In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s, including by issuing subpoenas for testimony before the grand jury.

Goodman complained that it took “nineteen months” after January 6 before DOJ “‘began to seek’ former USG officials testimony.”

“In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s.” Nineteen months after Jan. 6: DOJ “began to seek” former USG officials testimony.

For added context: August 2022 is after the House Select Committee had already completed its summer 2022 public hearings.

Other data show the slow start.

George Conway, piggybacking off Goodman’s error, claimed this started “*after* the House Jan. 6 Committee had held eight of its nine televised evidentiary hearings.”

Only, Goodman was misreading the Smith report and in the process demonstrating that he had not read the underlying documents.

The first opinion listed in Jack Smith’s appendix on the Executive Privilege fight, 22-gj-25, describes that the fight actually started in June, when prosecutors got approval to disclose grand jury materials and used it to write subpoenas, almost certainly sent to Marc Short and Greg Jacob. That passage makes clear that prosecutors got the White House Counsel to waive Executive Privilege (thereby adhering to the DOJ contacts policy), but Trump stalled for several weeks, and then got the witnesses’ attorneys to start asserting privilege.

So, contrary to Conway’s mistaken claim, this started no later than the first televised January 6 Committee hearing on June 9 (and probably, because prosecutors had already gotten approval to share grand jury information, even before that one).

Smith’s representation of these legal fights pertained to “litigation” — the actual legal filings — and only to the extent they continued into his own work. That’s evident from his appendix, which excludes some known legal fights. Indeed, Cheney and Gerstein actually themselves overstate what Smith includes in his report: While he included the relevant docket in his appendix, Smith barely addressed the 16-month fight (starting in August 2022) over the content in Scott Perry’s phone in the text of his report (his Speech and Debate discussion mostly pertained to Mike Pence’s fight in early 2023). And Cheney and Gerstein suggest that Smith addressed the fight over content from John Eastman, which Smith did not (nor did he include those filings in the report). That fight began sometime before May 26, 2022, by which point Beryl Howell had had hearings on a filter protocol for email accounts including Eastman and others (Cheney wrote more about that fight here).

To be clear: as far as is known, Goodman is only off by two months in his claim that DOJ did not try to speak to White House personnel until August 2022; it was June. But both he and Conway are wrong that the J6C hearings preceded this fight. You can certainly believe, as Goodman obviously does, that the best way to conduct the investigation was to start with White House personnel who would and did loop in Trump (and, as it happened, hasten the time he declared his candidacy), rather than starting with Co-Conspirator #1 and then #2, as DOJ proceeded. Goodman had no way of knowing when he started this complaint that SCOTUS would throw out much of the testimony from White House officials anyway, but he does now. If we’re engaging in counterfactuals, we can say with some confidence that approach would have been stymied even more effectively by SCOTUS.

Goodman also complained today that DOJ pursued the money trail and suspected communications with the Proud Boys and Oath Keepers immediately, both of which theories had solid evidence (likely arising from the mishandled Brandon Straka prosecution and the Owen Shroyer arrest) behind them. The money trail ended up being a dry hole; the comms angle ended up being inconclusive. But that’s the kind of thing Goodman and his ilk were demanding in real time — multiple prongs to pursue the case. Follow the money!

Instead, prosecutors’ most productive 2021 efforts appears to be getting an SDNY judge to allow DOJ to use the existing Special Master review for phones seized from Rudy Giuliani in April 2021 to prioritize obtaining the January 6 content. DOJ started with Co-Conspirator #1, and did so in a way that Trump had limited ability to obstruct. And from there, they seized one after another phone: John Eastman and Jeffrey Clark in June 2022, Scott Perry in August 2022, Boris Epshteyn and Mike Roman in September 2022, all of which would have had delays (not reflected in Jack Smith’s report because none of those have been unsealed) because of attorney-client, Speech and Debate, or technical exploitation issues, yet all of which would have been necessary given their reliance on encrypted apps. (This post argues that Smith likely didn’t get the content of Roman and Epshteyn’s phones until after he first indicted Trump.) You were never going to avoid getting the co-conspirator phones, because this coup was planned on encrypted apps and all of them fought disclosure. It appears that DOJ opportunistically seized the first of those on the first day there was a confirmed DAG to approve doing so. It is also clear that that wasn’t enough.

But if you’re going to make these complaints about what you read in Jack Smith’s report, you should note what else Smith said. The January 6 Committee work “comprised a small part of the Office’s investigative record,” but before Smith could use anything from J6C, prosecutors first had to “develop[] or verif[y those facts] through independent interviews and other investigative steps.”

The Office’s investigation included consideration of the report issued on December 22, 2022, by the U.S. House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Capitol, as well as certain materials received from the Committee. Those materials comprised a small part of the Office’s investigative record, and any facts on which the Office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps. During the prosecution of the Election Case, Mr. Trump alleged that the Select Committee and Special Counsel’s Office were one and the same and sought additional discovery about the Select Committee’s work. The district court rejected the claim. See ECF No. 263 at 47 (concluding that Mr. Trump has “not supplied an adequate basis to consider the January 6 Select Committee part of the prosecution team”). Regardless, the Office provided or otherwise made available to Mr. Trump in discovery all materials received from the Select Committee. See ECF No. 263 at 47 (“the Government states that it has already produced all the records it received from the Committee”).

We know from the immunity appendix that Jack Smith had productive follow-up interviews with Bill Barr, Ronna McDaniel, and Jason Miller, among others, to say nothing about more extensive cooperation with Eric Herschmann and Mike Pence’s privilege-waived interview(s).

But validating what J6C did could not start until J6C released transcripts in December 2022, after a 3-7 month delay.

The timeline below reflects the delay, from April to December 2022, in getting J6C transcripts (in part for good reasons; once DOJ got them, they were going to have to share with all January 6 defendants). The important delay, however, came in June, when prosecutors realized they had pending events, most obviously the Proud Boys trial, which for discovery reasons and to validate their most important cooperating witness, Jeremy Bertino, they needed to delay (and did, from August to December 2022) until those transcripts were released. At that point they believed those transcripts would come out in early September, which is what drove their trial schedule; but they didn’t come out until December.

This post and this post describes the predictable damage that that delay did to the Proud Boys case (which guilty verdict would be necessary to implicate Trump in insurrection). This post describes how prosecutors were able to use J6C transcripts that were done by June 2022 to identify the single most direct ask from Trump via Rudy Giuliani to overturn votes (one which likely relied on having exploited Rudy’s phone). Again, that clarification was delayed by 6 months. If you want to complain about delays — and there definitely appears to have been a delay from February to May 2022 when (per that famous WaPo story) FBI resisted that prong of the investigation — then you need to complain as well about the J6C delay of the same length.

But it’s not clear any of this would matter. SCOTUS had the ability, which they exercised, to stall all of this; had Trump lost, SCOTUS still would have gotten at least a second chance to weigh in before trial. And unless Smith superseded to add insurrection charges, Trump still would not be disqualified from running for office.

Barring Mitch McConnell or John Roberts doing the right thing, this battle was lost politically. And no amount of second guessing strategic decisions that ended up being auspicious given SCOTUS’ subsequent rewriting of the Constitution can change that. Indeed, the second guessing distracts from effective efforts to minimize Trump’s damage going forward.

Update: I’ve changed the language regarding prosecutors’ search of comms showing ties between the militias and Trump. I’ve added the Oath Keepers, whose ties to Stone were a subject of the investigation even before Garland was confirmed. I’ve deemed the comms angle inconclusive rather than a dry hole. Roger Stone was ultimately implicated in the Proud Boys’ obstruction of the vote certification via his actions at a January 3 rally in Florida (though not via the Proud Boy leaders). In December 2023, prosecutors took steps to more concretely lay out how Trump had sparked Proud Boy organizing.

Timeline

January 4, 2021: DC authorities seize Enrique Tarrio’s phone

January 25, 2021: Stop the Steal VIP Brandon Straka arrested; DOJ IG opens probe into Jeff Clark and others

February 17, 2021: First allegedly cooperative interview with Straka (Straka ultimately provided details on Ali Alexander’s Stop the Steal list, among other things, but the FBI almost certainly mishandled the entire Straka case, including by not probing his role at TCF Center in Michigan)

March 5, 2021: Second allegedly cooperative interview with Straka

March 11, 2021: Merrick Garland sworn in; in first meeting with investigators he encourages them to follow suspected money laundering behind payment for the rally

March 17, 2021: DOJ makes first tie between Oath Keepers investigation and Roger Stone

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ obtains warrant targeting Rudy Giuliani’s cell phones in Ukraine investigation

April 28, 2021: DOJ seizes multiple devices from Rudy, including the phone he used leading up to January 6

June 23, 2021: First Oath Keeper who interacted with Stone enters into cooperation agreement

August 19, 2021: Alex Jones sidekick Owen Shroyer, who participated in Friends of Stone list and served as a communication hub between Proud Boys and others, arrested

September 2021: DOJ subpoenas records from Sidney Powell grift

September 3, 2021: SDNY makes an ultimately successful bid to review all content on Rudy’s devices for privilege (making such content immediately available if and when DOJ obtains January 6 warrant targeting Rudy)

Fall 2021: Thomas Windom appointed to form fake elector team

October 28, 2021: Merrick Garland tells Sheldon Whitehouse DOJ is following the money of January 6

November 2, 2021: Special Master Barbara Jones releases first tranche of materials (through date of seizure in April 2021) from Rudy’s phones, including device containing many of Rudy’s January 6 communications

November 22, 2021: Trump appointee Carl Nichols asks James Pearce whether 18 USC 1512(c)(2) might be applied to someone like Trump (he would go on to issue an outlier opinion rejecting the application)

December 2021: NARA and Mark Meadows begin process of completing his record of PRA-covered communications

December 10, 2021: Judge Dabney Friedrich (a Trump appointee) upholds application of 18 USC 1512(c)(2) to January 6

January 5, 2022: Merrick Garland reiterates that DOJ is investigating the financial side of January 6

Mid-January 2022: DOJ finally obtains contents of Tarrio’s phone

January 19, 2022: Jones releases remaining content from Rudy’s phones; SCOTUS declines to review DC Circuit rejection of Trump’s Executive Privilege claims with respect to January 6 subpoenas

January 25, 2022: Lisa Monaco confirms DOJ is investigating fake electors plot

January 31, 2022: DOJ opens grand jury investigation

February 18, 2022: In civil cases, Judge Amit Mehta rules it plausible that Trump and militias conspired to obstruct vote certification, as well that he aided and abetted assaults and also that it is plausible Trump used incitement not protected by the First Amendment

March 2, 2022: Oath Keeper in charge of Stone security on January 6, Joshua James, enters into cooperation agreement

March 7, 2022: Carl Nichols first requires implication of documentary evidence for 18 USC 1512(c)(2)

March 28, 2022: Judge David Carter issues crime-fraud ruling covering John Eastman’s communications with and on behalf of Trump

April 13, 2022: After two month stall, FBI finally approves their side of investigation

Probable April 2022 (based on how long it took for filter protocols elsewhere): Warrant for Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer emails

April 2022: DOJ requests transcripts from J6C

May 2022: DOJ subpoenas all NARA records provided to J6C

May 26, 2022: Subpoenas for fake electors plot including Rudy, John Eastman, Boris Epshteyn, Bernie Kerik, and Jenna Ellis, among others; filter protocol for email accounts of Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer

June 6, 2022: DOJ charges Proud Boy leaders with seditious conspiracy

June 9, 2022: In Proud Boys hearing, prosecutors say they expect to get J6C transcripts in September

June 15, 2022: Subpoena to Marc Short and Greg Jacob; letter to J6C renewing request for transcripts

June 16, 2022: DOJ agrees to delay Proud Boys trial from August 9 to December 12 because of the transcripts

June 21, 2022: Second set of fake electors subpoenas, adding Mike Roman and others, warrants for NV GOP officials and GA official

June 22, 2022: DOJ searches Jeffrey Clark’s home and seizes his phone

June 23, 2022: DOJ completes exploitation (but not scoping) of Shroyer’s phone;

June 24, 2022: Ali Alexander grand jury appearance; Warrant approved for Clark Gmail account

June 27, 2022: Then Chief Judge Beryl Howell permits prosecutors to obtain emails between Scott Perry and Clark and Eastman

June 28, 2022: DOJ seizes John Eastman’s phone

July 22, 2022: Marc Short appears before grand jury

August 9, 2022: DOJ seizes Scott Perry’s phone

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 2022: Mark Meadows provides previously withheld PRA covered materials to NARA

Early September, 2022: Pre-election legal process includes seizure of Boris Epshteyn and Mike Roman’s phones, subpoenas to key aides including Dan Scavino, Bernie Kerik, Stephen Miller, Mark Meadows, subpoenas pertaining to Trump’s PAC spending

September 27, 2022: Howell approves sharing of memoir

October 13, 2022: Marc Short and Greg Jacob make second, privilege-waived grand jury appearance

November 18, 2022: Merrick Garland appoints Jack Smith

December 2, 2022: Pats Cipollone and Philbin make second, privilege-waived grand jury appearance

~December 7, 2022: J6C provides at least some transcripts to DOJ (which are turned over to Proud Boys the following day)

December 21, 2022: J6C publicly releases transcripts promised in September

December 2022: Rudy Giuliani subpoena asks for information on his payment

January 17, 2023: Warrant for Trump’s Xitter account

February 9, 2023: Mike Pence subpoenaed; Xitter complies with Trump warrant

February 23, 2023: DC Circuit hears Scott Perry’s challenge to order providing access to his phone content

March 9, 2023: Judge Kollar-Kotelly orders Peter Navarro to turn over PRA-covered contents from Proton Mail account

March 28, 2023: Chief Judge Jeb Boasberg rules Mike Pence must testify (though protects some areas on Speech and Debate grounds)

April 4, 2023: DC Circuit declines to stay Beryl Howell ruling ordering testimony from Mark Meadows and others

April 7, 2023: DC Circuit upholds 1512(c)(2)

April 27, 2023: Mike Pence testifies before grand jury

August 1, 2023: Jack Smith indicts Trump

December 1, 2023: DC Circuit issues Blassingame and Tanya Chutkan rules against Trump on immunity

December 11, 2023: Jack Smith asks SCOTUS to expedite appeal

December 13, 2023: SCOTUS grants cert to Fischer’s 1512(c)(2) appeal

December 19, 2023: Boasberg orders Perry to turn over non-Speech and Debate privileged comms

December 2023 to August 7, 2024: SCOTUS delays January 6 case

January 9, 2024: DC Circuit argument

February 6, 2024: DC Circuit Immunity decision

May 2024: Original trial date

June 28, 2024: SCOTUS narrows application of 18 USC 1512(c)(2)

July 1, 2024: SCOTUS immunity decision

August 7, 2024: Chutkan receives mandate from immunity decision

August 27, 2024: Jack Smith supersedes Trump to accommodate SCOTUS immunity and obstruction rulings

January 7, 2025: Jack Smith report

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Calvinball

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

ORDER:

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

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

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

ENTERED FOR THE COURT – BY DIRECTION

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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Will Aileen Cannon Succeed at Suppressing Hunter Biden Dick Pic Sniffing?

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I had a dream last night that the documents side of the Jack Smith report, which is the subject of a heated legal battle right now, revealed that Smith developed evidence that Trump had given documents he took to the Saudis in the context of several major business deals. To be clear: It was a dream! I don’t think that’s the most likely content of the report.

But the report is sure to be pretty damning. I’m virtually certain the report shows that aspiring FBI Director Kash Patel lied to help Trump retain classified documents. Senior White House counselor designee Stan Woodward played a role in giving Patel and Walt Nauta legal protection to, themselves, run legal interference for Trump (though there’s absolutely no reason to believe the report will say Woodward’s actions were unethical). Questions remain about whether Trump succeeded in retaining and disposing of still-unidentified documents. And the report may explain the sensitivities of the documents and the mitigation the Intelligence Community had to do as a result.

That said, my dream convinced me — against my better judgment — to explain what I think DOJ is trying to do with this legal fight, because it conveys the outer limits of potential scandal that could be buried in that document. Just the stuff implicating Kash alone is damning, but it could be far worse.

I want to talk about the government response — in the person of the SDFL US Attorney’s Office and DOJ’s Appellate team, because Jack Smith has already withdrawn from the 11th Circuit — to Walt Nauta and Carlos De Oliveira’s bid to enjoin the release of the stolen documents half of the Jack Smith report.

Procedurally, here is what happened in the 11th Circuit (I may or may not go back to fill in Aileen Cannon’s side, but as you can see, she tried to bigfoot into an ongoing matter before the 11th Circuit, which may have pissed off the 11th).

January 7, 9:02 AM, 11th Circuit: Emergency motion to bar release. “Garland is certain to release the report and it will impugn on our right to a free trial and the report cannot be released lawfully, because Jack Smith was unconstitutionally appointed and Trump is President-elect.”

January 7, 1:13PM, 11th Circuit: Notice. DOJ shall submit a response by 10AM on January 8.

January 7, 1:23PM, 11th Circuit: USDC Order. Aileen Cannon’s order enjoining the release of everything docketed at 11th Circuit.

January 7, 1:28PM, 11th Circuit: Notice of appearance. DOJ Appellate lawyer Mark Freeman files an appearance.

January 7, 3:18PM, 11th Circuit: Supplemental. “Here’s the order that already got filed in this docket. We’re, uh, filing it so it has a procedural purpose on the docket.”

January 8, 9:49AM, 11th Circuit: Response. “The part of the report pertaining to Nauta and De Oliveira won’t be released so they have no standing.”

January 8, 11:28AM, 11th Circuit: Notice of intention to reply. “We’re going to reply by 10AM on Thursday.”

January 8, 12:22PM, 11th Circuit: Notice. “No, you’ve got until 5PM today to respond.”

January 8, 5:06PM, 11th Circuit: Reply. “What if it leaks?”

January 8, 10:52PM, 11th Circuit: Trump Amicus. “Block both volumes!!”

The government response effectively argues the following: There are two volumes to the report, Volume One, which covers Trump’s attempted coup, and Volume Two, which covers the documents case. Walt Nauta and Carlos De Oliveira are not mentioned in Volume One, and so they have no interest in it and so no legal standing to try to block it.

Because of the ongoing case against Nauta and De Oliveira (the Response explains), Merrick Garland has decided that no part of Volume Two will be released. It will, instead, only be made available for in camera review to the House and Senate Judiciary Chairs and Ranking Members at their request, with their agreement that no information from it will be publicly released.

Nauta and De Oliveira have no authority to affect the release of Volume One. Not only did Judge Cannon’s original order deeming the Jack Smith appointment unconstitutional limit itself to the case before her (that is, not even the one in DC), but she cannot have the authority to deem all Special Counsels unlawful.

Please specify that this is the last word, unless the 11th Circuit en banc or the Supreme Court tries to get involved.

Narrow the legal dispute

I don’t pretend any of this is satisfying to people who want both reports. But here’s the legal logic to it.

First, because of the the posture of this appeal, the entire documents side of the case is in uncertain status. When Judge Cannon ruled Jack Smith’s appointment was unconstitutional, she said that everything Smith had done since his appointment had to be unwound. So unless the report only covered stuff before that point — that is, through the document seizure, but during which Cannon’s injunction on the investigation largely prevented any interviews of people like Nauta — then it remains in limbo awaiting the 11th Circuit decision on Cannon’s ruling. So it’s not just that there’s a pending case against Nauta and De Oliveira, it’s also that the entire legal status of the work done after November 18, 2022, which makes up the bulk of the obstruction investigation.

So whatever Garland (or Brad Weinsheimer, the top nonpartisan lawyer at DOJ, whom I’m certain is involved) thinks about the merit of releasing the report, for the purposes of this dispute, he is trying to eliminate any standing anyone has to interfere with the release of the January 6 volume. (Side note: it was short-sighted for Jack Smith to release these as volumes to the same report, rather than separate free-standing reports.) Nothing Garland has authorized with the volume pertaining to Nauta and DeOliveira can affect their hypothetical right to a fair trial they’ll never face, because nothing from the report will become public in such a way that potential jurors would see it. That is, sacrifice immediate publication of the documents volume in an attempt to release the January 6 one.

Create a dead man’s switch

Garland has agreed with Jack Smith that Volume Two should not be released so long as the Nauta and De Oliveira cases are pending, but that suggests once they no longer are pending, the information could be released.

Attorney General Garland is committed to ensuring the integrity of the Department’s criminal prosecutions. Considering the risk of prejudice to defendants Nauta’s and De Oliveira’s criminal case, the Attorney General has agreed with the Special Counsel’s recommendation that Volume Two of the Final Report should not be publicly released while those cases remain pending. See 28 C.F.R. § 600.9(c). There is therefore no risk of prejudice to defendants and no basis for an injunction against the Attorney General.

[snip]

The Attorney General’s determination not to authorize the public release of Volume Two fully addresses the harms that defendants seek to avoid in their emergency motion. As noted, consistent with 28 C.F.R. 600.9(a), the Attorney General intends to make Volume Two of the Final Report available for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees, pursuant to restrictions to protect confidentiality. Even then, however, consistent with legal requirements, the Department will redact grand jury information protected by Rule 6(e) as well as information sealed by court order from the version made available in camera for congressional review. Defendants have no colorable claim to prejudice from these carefully circumscribed in camera disclosures.

The filing leaves unsaid what happens when the cases against them go away, which will happen either because the 11th Circuit affirms Cannon’s ruling that Jack Smith was unlawfully appointed, Trump’s DOJ withdraws from the appeal, or Trump simply pardons his co-conspirators. Everyone knows they will go away, but once they do, then in theory Volume Two could come out.

Everyone has made sure the report could come out in current form; because of the redactions they’ve done, no grand jury material would be implicated, nor any information sealed by Cannon.

This creates an effective dead man’s switch tied to the Nauta and De Oliveira prosecution. Once that case goes away, Jamie Raskin and Dick Durbin would be free to talk about it. And, it’s possible, there’s a standing order at DOJ that it will be released publicly.

Of course, either the landing team at DOJ or Pam Bondi, once she’s confirmed, can and undoubtedly would override any such order. Assuming they can find every report at DOJ or they disseminate an order forbidding its release sufficiently broadly to cover all potential distributions within DOJ, they can and likely will succeed in preventing the release.

I’m not saying we’ll get the report, which is one reason I hesitated to even post this.

At that point, though, whoever orders the report’s suppression would, in effect, be suppressing damning information about — at least — Kash Patel. And Trump. And (with my clear caveat that there’s no reason to believe Woodward did anything unethical), Woodward, who one of these days should expect nomination as a judge.

And, if Jamie Raskin and Dick Durbin get to review it, they would know that.

In other words, if, by taking any legal dispute off the table, Garland succeeds in letting Raskin and Durbin read the report, it’ll create a headache.

Not to mention, the existence of the report will likely form a key part of Jim Jordan and Kash Patel’s efforts to retaliate against Jay Bratt and Jack Smith. And it may create ethical obligations to recuse from such matters for everyone but Bondi.

Again, I’m not saying this will work. I’m saying it may cause headaches.

Implicate the Hunter Biden report

That brings us to the second thing that Garland/Weinsheimer have done to muddle these legal issues.

As I’ve said repeatedly, David Weiss was appointed under the same legal authority as Jack Smith. If Jack Smith’s appointment was unconstitutional, then Weiss’ was, too, especially with respect to Hunter Biden’s Los Angeles prosecution and even more with respect to Alexander Smirnov’s prosecution. Yet several DC judges have rejected that claim.

And we’re about to get a report from Weiss, too, one that remains unmentioned, at least specifically, in this legal dispute.

After Joe pardoned Hunter, Weiss got Smirnov to agree to a baffling above-guidelines sentence plea deal, with the caveat that he be sentenced almost immediately; yesterday, Judge Otis Wright sentenced him to six years. I expect that Weiss has already completed his report, with the expectation it’ll be released along with Trump ones on Friday. (I’ve been guessing this would all go down on January 10 for some time; looks like a pretty prescient guess.)

So when DOJ repeatedly mentions the impossibility that Cannon’s order could enjoin all Special Counsels nationwide, they are implicitly including David Weiss, even if only Jack Smith’s DC report gets mentioned.

Defendants also reiterate their claim that the Special Counsel was unlawfully appointed. The United States has thoroughly rebutted that contention in its merits briefs in this appeal. But in any event, the argument is irrelevant to the only action here at issue—the handling of the Final Report by the Attorney General. The district court, in dismissing the indictments against defendants, did not purport to enjoin the operations of the Special Counsel nationwide, nor could it have properly done so in this criminal case. Accordingly, as required by Department of Justice regulations, the Special Counsel duly prepared and transmitted his confidential Final Report to the Attorney General yesterday (as permitted by the district court’s recent order). 28 C.F.R. § 600.8(c) (“Closing documentation.”). What defendants now ask this Court to enjoin is not any action by the Special Counsel, but the Attorney General’s authority to decide whether to make such a report public. See id. § 600.9(c); 28 U.S.C. § 509. As noted above and discussed in more detail below, the Attorney General determined that he will not make a public release of Volume Two while defendants’ cases remain pending. That should be the end of the matter.

[snip]

Although the district court in this case concluded that the Special Counsel was not properly appointed and ordered that the indictment be dismissed as a remedy, the district court did not purport to enjoin the ongoing operations of the Special Counsel’s Office nationwide. This is a criminal case, and the district court limited its remedy to dismissal of the indictment. See Dkt. 672 at 93. The court did not purport to issue—and it could not properly have issued—a nationwide injunction barring the Special Counsel from discharging the functions of his office in Washington, D.C. or elsewhere.

Indeed, while defendants argue that the order appointing the Special Counsel became “void” upon issuance of the district court’s judgment in this case, Mot. 14, the district court was clear that its order was “confined to this proceeding,” see Dkt. 672 at 93. —i.e., to this criminal prosecution. The district court never barred the Special Counsel from performing other duties, including the preparation of the Final Report. Had it purported to do so, the district court would have had to grapple with the fact that the D.C. Circuit—whose law governs Department headquarters and the Special Counsel’s offices where the Final Report was prepared—has rejected the same Appointments Clause theory that the district court accepted. See, e.g., In re Grand Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019). The district court with responsibility for the Election Case did so as well.

On paper, at least, Nauta and De Oliveira have no legal dispute, and Trump’s amicus demanding that the DC volume be suppressed, too, has even less.

But who knows? Trump’s dealing with a set of judges and justices who could care less about legal standing if it means protecting him.

And that’s why the Hunter Biden report matters.

If the 11th Circuit issues an order enjoining all currently pending Special Counsel reports, it would have the effect of enjoining the Hunter Biden one, as well. And then, when Pam Bondi comes in and tries to suppress the Trump one, any release of the Hunter Biden one (which I expect to assign a specific time and cost value of the pardon to Hunter), will amount to an ethical problem, a double standard serving to protect Trump.

Again, I’m not saying that any of this will work. I’m saying that if and when it doesn’t, it has the ability create a big ethical and potentially legal headache for Trump’s wildly conflicted DOJ just at the start of their tenure.

Update (h/t Lemon Slayer): Garland wrote the Chairs and Ranking Members about the completion of the report and the delay caused by Cannon. This language sure sounds like Garland has intended his order will release the report when the investigation into Nauta and De Oliveira is killed.

Consistent with local court rules and Department policy, and to avoid any risk of prejudice to defendants Waltine Nauta and Carlos De Oliveira, whose criminal cases remain pending, I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing. Therefore, when permitted to do so by the court, I intend to make available to you for in can1era review Volume Two of the Report upon your request and agreement not to release any information from Volume Two publicly. I have determined that once those criminal proceedings have concluded, releasing Volume Two of the Report to you and to the public would also be in the public interest, consistent with law and Department policy.

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The Opportunity Costs of Conspiracy Theories about Merrick Garland

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You have a choice.

You can spend the next few weeks laying the groundwork for making a big stink about the fact that the aspiring FBI Director tried to help Trump steal classified documents.

Or you can spend it clinging to false claims about Merrick Garland so you can blame him for the fact that Trump won reelection rather than blaming the guy directly responsible for preventing a trial (and the guy who’ll remain responsible for Trump’s license going forward), John Roberts, to say nothing of the failed Democratic consultants and voters themselves.

Sadly, Democrats and lefties — from random people on Bluesky to TV lawyers to the President himself — are choosing the latter path, the path that will guarantee they remain maximally ineffective.

They’re rolling out all the tired false claims: Merrick Garland waited before investigating people close to Trump, they claim. According to NYT, Garland approved an effort to follow the money in his first meeting with prosecutors — an effort that turned out to be a dry hole, but nevertheless was precisely the approach that people like Sheldon Whitehouse and Andrew Weissmann demanded.

After being sworn in as attorney general in March 2021, Merrick B. Garland gathered his closest aides to discuss a topic too sensitive to broach in bigger groups: the possibility that evidence from the far-ranging Jan. 6 investigation could quickly lead to former President Donald J. Trump and his inner circle.

At the time, some in the Justice Department were pushing for the chance to look at ties between pro-Trump rioters who assaulted the Capitol on Jan. 6, 2021, his allies who had camped out at the Willard Hotel, and possibly Mr. Trump himself.

Mr. Garland said he would place no restrictions on their work, even if the “evidence leads to Trump,” according to people with knowledge of several conversations held over his first months in office.

“Follow the connective tissue upward,” said Mr. Garland, adding a directive that would eventually lead to a dead end: “Follow the money.”

In June 2021, they focused on the Willard, precisely the people everyone wanted investigated.

In late June, Mr. Garland, Ms. Monaco and several aides decided they needed to take a dramatic step: creating an independent team, separate from Mr. Cooney’s original group, tasked with investigating the Willard plotters, with no restriction on moving up the ladder to Mr. Trump if the evidence justified it.

They did not want too many people knowing about it. So they gave it a vanilla name: the “Investigations Unit.”

NYT misses — as everyone else has, too — one of the most opportunistic things DOJ did to accelerate the investigation. It used the existing warrant for Rudy’s devices obtained on Lisa Monaco’s first day on the job, April 21, 2021, to do a privilege review of the January 6 content at the same time. The Special Master prioritized the phone Rudy used on January 6 — 1b05A, which appears throughout Rudy’s privilege log for January 6 related material — and started turning over that material to DOJ starting on November 11, 2021. That effort yielded at least one key document that shows up in Trump’s January 6 indictment but not the January 6 Report, as well as encrypted content not available anywhere else.

DOJ started with Rudy, Co-Conspirator 1, the guy through whom the entire fake elector plot got pitched to Trump, and people are whining that DOJ didn’t start at the top of the conspiracy. They did. You just didn’t notice.

Those are not the only things DOJ was doing in 2021. The plodding DOJ IG started investigating Jeffrey Clark on January 25, 2021. DOJ appears to have figured out a way to solve a difficult problem — how to get waivers of Executive Privilege without violating White House contact policies — in July 2021. DOJ sent overt subpoenas pertaining to Co-Conspirator 3, Sidney Powell, in September 2021. DOJ was also working to fill out the encrypted communications the militias exchanged with people like Roger Stone (who first showed up in a court filing in March 2021) and Alex Jones, but it took even longer, over a year, to exploit Enrique Tarrio’s phone, than it did Rudy’s, nine months, and that process necessarily requires working phone by phone.

You can complain that investigations take too much time. You can gripe that investigators did precisely what everyone wanted them to do — follow the money and investigate the Willard. But they were pursuing precisely the angles people were demanding, and long before virtually everyone understands.

That 2021 focus is inconsistent with other conspiracy theories people are floating, too: None of this started until Jack Smith was appointed (or that Jack Smith gave it new life), they say. Nothing happened for two years, they say.

As far as I know, every phone that went into the indictment and immunity brief (which added information from Boris Ephsteyn and Mike Roman’s phone) was seized before Smith’s appointment. The onerous 10-month process of obtaining Executive Privilege waivers for testimony from Trump’s top aides, without which you couldn’t prove that Trump held the murder weapon — the phone used to send a tweet targeting Mike Pence during the riot — started on June 15, 2022, five months before Smith’s appointment. Jack Smith looks prolific to those who don’t know those details, because 10 months of hard work finally came to fruition in the months after he was appointed.

The claim nothing happened for two years? The only major investigative step that happened after the two-year anniversary of Merrick Garland’s confirmation was Mike Pence’s testimony.

The claims people are using to blame Merrick Garland that Trump was reelected — all of them!!! — are easily falsifiable. (I’m happy to entertain arguments that Garland’s grant of Special Counsel status to David Weiss affected the election, but the decision to keep Weiss was one Biden made.) The single possible action from DOJ (likely either Brad Weinsheimer or Public Integrity) that could have created a delay would be pre-election limits on what prosecutors could including the August 2024 superseding indictment. But it’s just as likely that prosecutors believed a narrow superseding indictment was tactically smart.

This is the point, though. This is not about Merrick Garland. I’m happy to criticize him for things he did. I’ve written more critical of his picks and handling of Special Counsels than anyone.

I could give a flying fuck about Merrick Garland.

What I care about is that at a time when we need to start establishing means of accountability for a second Trump term, much of the Democratic world has chosen instead to wallow in false claims about the Trump investigation in order to make Garland a scapegoat, rather than the guy directly responsible, John Roberts. It’s classical conspiracy thinking. Something really bad happened (Trump got elected), it’s not entirely clear why (because almost no one bothers to learn the details I’ve laid out here, to say nothing of considering the political work that didn’t happen to make Trump own this), and so people simply invent explanations. Every time those explanations get debunked, people double down on the theory — it’s Garland’s fault — rather than reconsidering their chosen explanation.

And those explanations have the effect of distracting attention from Roberts. Rather than talking about how six partisan Justices rewrote the Constitution to give the leader of the GOP a pass on egregious crimes, Democrats are choosing to blame a guy who encouraged prosecutors to follow the money in March 2021.

It’s a choice. And it’s a choice that guarantees maximal impotence. It’s a choice that eschews actual facts (and therefore the means to actually learn what happened). It’s a choice that embraces irrational conspiracy thinking (which makes people weak and ripe for manipulation by authoritarians). It’s a choice that distracts from Roberts’ role.

And there is a better, more urgent, option.

We have every reason to believe we’ll get a report from Jack Smith (though I would be unsurprised if Trump tried to enjoin its release). Given David Weiss’ great rush to sentence Alexander Smirnov on January 8, I suspect we’ll get a report from Weiss too. My guess (given Weiss’ January 8 sentencing day) is we may get both reports at the same time — maybe January 10 or so. That’s a wildarse guess.

And so rather than in wallowing in conspiracy theories, Democrats would do well to prepare a messaging plan for those reports.

I expect David Weiss’ report to smear up not just Hunter but also Joe Biden, for pardoning Hunter. I expect he’ll suggest that Kevin Morris’ support of Hunter (a loan Hunter would have had to pay back after the election, but which he had no means to pay) has amounted to a massive campaign contribution to Joe. I wouldn’t even rule out Weiss pushing for Republicans to impeach Biden over that.

I spoke with Harry Litman back in November about what a Jack Smith report might have. Remember, his mandate is to describe both charging decisions (the two indictments he filed) but also declination decisions (the people and crimes he didn’t charge).

That means the report — if Trump doesn’t thwart its release — should answer a lot of questions that have people spun into conspiracy theories. Why didn’t Smith charge all of Trump’s co-conspirators (probably because the Mueller investigation showed how futile it would be to charge anyone before Trump, which the Florida prosecution seems to confirm)? Why didn’t Smith charge any members of Congress (undoubtedly because their actions would be covered by Speech and Debate, as confirmed by a DC Circuit opinion written about the exploitation of Scott Perry’s phone)? It likely will even provide more fulsome descriptions of the documents Trump refused to give back.

But there are three possible or likely aspects to the report that may become important for the confirmation of Trump’s appointees (which is one reason he might try to enjoin the release) and the pardons he plans shortly thereafter.

First, prosecutors had investigated how Trump used money raised on a promise to spend on election integrity to instead pay everyone off. That’s how he paid Deputy Attorney General nominee Todd Blanche, Solicitor General nominee John Sauer, and PADAG Emil Bove (Bove does not need Senate confirmation). Trump’s incoming Chief of Staff (who also does not need Senate confirmation), Susie Wiles, managed much of that process. DOJ did not charge this scheme, but we may get an explanation for what it entailed and why Smith didn’t charge it. While Blanche, et al, have no legal exposure themselves in the way Trump paid them, if we learned more about it, it would further highlight the wildly inappropriate conflicts all these men would have in running DOJ. That is, there’s the distinct possibility that a report would provide tangible explanation for why Blanche and Sauer have grave conflicts.

Far more important is the point I made here. FBI Director nominee Kash Patel may figure in both sides of Jack Smith’s report, the January 6 and the documents side. With Christopher Miller, Kash engaged in what Barry Loudermilk treated as insubordination by refusing Trump’s order to get him 10,000 troops for January 6; this post talked about how that might be a more productive way to make Loudermilk’s Liz Cheney referral a problem for Kash. That’s a way to raise distrust of Kash among Republicans.

But Kash’s involvement in the other side of the investigation (which appears at 19:00 in the video above) is more important. A key prong of the investigation into Trump’s treatment of the documents found at Mar-a-Lago involve disproving Kash’s public claim — made just before DOJ subpoenaed the documents — that Trump had declassified everything.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

Someone whose potty mouth resembles Eric Herschmann (Person 16) debunked this claim just before Patel (Person 24) testified.

What Kash said in his immunized November 2022 testimony didn’t show up in either of the Florida indictments (and we only got reports of what he thought he’d say beforehand). We don’t know whether he backed off his unsworn comments. We don’t know whether he gave testimony debunked by five other people. We don’t know how much Kash had to say about efforts to take the Crossfire Hurricane binder home.

But all that is highly likely to show up in a report.

If we get the report, it is highly likely that we’ll get evidence that the aspiring FBI Director lied to help Trump take classified documents home from the White House.

If we get the report, it is highly likely that, shortly before his confirmation process, we’ll get evidence that the aspiring FBI Director helped Trump commit a crime.

Now, the Republicans don’t care. That’s not going to affect their willingness to rubber stamp Kash’s nomination. But if Democrats do their job well, then they can use this information to dramatically raise the costs of the Kash confirmation.

Or Democrats can continue to wallow in conspiracy theories about Merrick Garland.

Finally, I think it highly like a report — if we get one — will talk about how Trump’s call to the rally motivated certain key rioters to conspire to obstruct the election. We’ll learn about how his exhortation to Stand Back and Stand By had an immediate effect on Proud Boy membership. We’re likely to learn about how Danny Rodriguez immediately responded to Trump’s targeting of Mike Pence in his January 6 speech to make slitting motion at his throat, naming Joe Biden, and then proceeded to almost murder Michael Fanone, pretty close to meeting the Brandenberg definition of incitement. We’re likely to learn how the guys who helped breach the East door, then broke into the Senate gallery, then rappelled down to the Senate floor and let others in believed that Trump ordered them to come to DC on December 19, 2020. Trump has been desperate to prevent just this evidence from being submitted at trial.

But it will also raise the stakes of his pardons. If this information comes out, then it will make it clear that Trump isn’t just pardoning his fans, he’s pardoning people who believed they were responding to his orders to attack Congress.

Democrats can spend the time between now and confirmation hearings making ever-evolving conspiracy theories about Merrick Garland, something that makes them as weak as possible, something that makes them more susceptible to authoritarian manipulation.

Or they can spend the time making it clear just how corrupt Trump’s appointments and pardons are.

Democrats seem to be struggling even to chew gum without faceplanting. They can’t do both.

It’s just my opinion. But I think Democrats would be far better served focusing on the facts that we do know from the twin investigations of Trump rather than inventing false claims about why they didn’t go to trial. This is the work Democrats didn’t do in 2023, when Trump was making unchallenged false claims that these investigations were witch hunts. The failure to do that work is a more direct explanation why the indictments didn’t disqualify him with voters than anything Merrick Garland did or didn’t do. And until Democrats do this work, they’ll be politically sunk.

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Trump Sold Grievance and America Liked What He Was Selling

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Once Trump got everyone hooked on his grievance drug, Merrick Garland was never going to make a difference.

I have tried, over and over, to explain how the investigation into Trump and his co-conspirators proceeded. More recently, I’ve explained how you couldn’t have charged Trump with insurrection — the only thing that would have disqualified him from running — until after May 2023, and had Jack Smith done so, it would have ended up exactly where we are here, with John Roberts delaying everything until after the election.

No effort to explain the process — the two years of exploiting phones, the months of January 6 Committee delay, the ten months of privilege fights, the month Elon Musk stole, or the eight months John Roberts bought Trump — none of that has mattered, of course. People needed an explanation for their own helplessness and Merrick Garland was the sparkle pony they hoped would save them.

But nothing Merrick Garland would have done would have mattered anyway.

That’s because since January 2017, since Trump learned that Mike Flynn had been caught undermining sanctions on the phone with Sergey Kislyak, Trump has used every effort to hold him accountable as a vehicle to sell grievance.

This is the core premise of the Ball of Thread podcast I’ve been doing with LOLGOP.

Rather than being grateful when learning that FBI was investigating four of his close campaign advisors had monetized their access to him — rather than imagining himself as the victim of the men who snuck off and met with Russian spies — Trump made himself the victim of the FBI. He invented a claim he was wiretapped, and then kept inventing more and more such false claims. And then he (possibly on the advice of Paul Manafort, whose associate Oleg Deripaska funded HUMINT before the Democrats did) used the dossier as stand-in for the real Russian investigation. It wasn’t the Coffee Boy yapping him mouth that led to the investigation into those trying to monetize access, this false story tells, it was the dossier Russia filled with disinformation, a guaranteed way to discredit the investigation. Once you convince people of the lie that the FBI really did investigate a candidate based off such a flimsy dossier, it becomes easy to target all those involved, along the way gutting the Russian expertise at FBI.

Then Bill Barr came in and used the authority of the Attorney General to lie about what the investigation found; almost no media outlets have revisited the findings once it became clear that Barr didn’t even bother learning what the report said. While trying to kill Zombie Mueller — the parts of the investigation that remained after Mueller finished — Barr’s DOJ literally altered documents in an attempt to put Joe Biden at the genesis of the investigation into Donald Trump, yet another attempt to replace the actual investigation, the Coffee Boy and campaign manager and National Security Advisor and personal lawyer and rat-fucker who were found to have lied to cover up the 2016 Russian operation, with a storytale in which Democrats are the villains.

John Durham never bothered to learn what the report actually said either. Had he done so, it would have been far harder to criminalize Hillary Clinton for being a victim of a hack-and-leak operation, along the way taking out still more expertise on Russia.

And while Barr was criminalizing people, he followed Rudy’s chase for dick pics in an effort to criminalize Hunter Biden and his father.

Do you see the genius of this con, Donald Trump’s most successful reality TV show ever?

Vast swaths of America, including at least half the Supreme Court, and millions of working class voters, really believe that he — the guy who asked Russia to hack his opponent some more — was the victim.

And that’s how a billionaire grifter earns the trust of the working guy.

For the most part, the press just played along, repeating Trump’s claims of victimhood as if they were true.

It’s also the problem in thinking that if only Trump faces legal consequences, he’ll go away, he’ll be neutralized.

We saw this every time he faced justice. The first impeachment. The second one. The New York trials. Each time, his grievance became a loyalty oath. Each time, he sucked more and more Republicans into the con. Each time he made them complicit.

The hatred of and for Trump by Rule of Law is what made him strong, because he used it to — ridiculously!! — place himself into the role of the little guy, the target of those mean elites.

We’ll have decades, maybe, to understand why Trump resoundingly won yesterday. Some of it is inflation (and the unrebutted claims it is bigger than it is), which makes working people angry at the elites, people they might imagine are the same people persecuting Trump.

For many, though, it’s the appeal of vengeance.

Trump has spent nine years spinning a tale that he has reason to wreak vengeance on Rule of Law. The greatest con he ever pulled.

So even if DOJ had charged Trump, two months before Merrick Garland was confirmed (though all three of the charges people imagine would be easy — incitement, the call to Brad Raffensperger, and the fake electors plot — have been unsuccessful in other legal venues), even if DOJ had convicted Trump along with the earliest crime scene defendant in March 2022, even if Trump hadn’t used the very same means of delay he used successfully, which would have still stalled the case past yesterday’s election, it still wouldn’t have disqualified him from running.

It still would be the centerpiece of his manufactured tale of grievance.

It still would be one of the elements he uses to make working people think he’s just like them.

You will only defeat Trumpism by destroying that facade of victimhood. And you will not achieve meaningful legal victories until you do that first.

I know we all need an easy way to explain this — an easy culprit for why this happened.

But it’s not Merrick Garland, because years before he came on the scene, Trump had already convinced everyone that any attempt to hold him accountable was just another attempt by corrupt powers to take him down.

Trump sold the country on grievance and victimhood. And in the process he made half the country hate Rule of Law.

Update: This is a good summary of how Trump lures in people attracted to grievance.

The Republican Party has been the party of the Low-Trust voter for a very long time. It’s the party that wants to get rid of institutions, of any of the bonds that connect us all together. The Democratic Party is the party of institutions, the party of Good Governance. It’s the party of trusting other Americans to make good choices for you. There is very little that the Democrats can do to appeal to the Low-Trust voter, and you saw what that means for the future of our politics last night. I would go so far as to say that we’re seeing the effects of a realignment of what partisanship is. The GOP is the party of the perpetual outsider and the Low-Trust voter, the people calling for things to be torn down. The Democrats are the insiders, the institutionalists. That’s why you saw realignment of people like Liz Cheney and Vermont Governor Phil Scott, people who still think the government matters even if they disagree on how it should be doing things.

I don’t know what you can do to win back the Low-Trust voters.

[snip]

I don’t know how you build back trust in the government. Things like FEMA in disasters are supposed to be able to do that, but the post-hurricane situation in North Carolina, where outside agitators went in to try to destroy that trust, and people on the Internet went out of their way to spread lies about how the Federal government had abandoned Asheville, are just examples of how everything can be used to pop out more Low-Trust voters.

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What It Would Take to Charge Donald Trump with Inciting Insurrection

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I’ve been thinking a lot about Donald Trump’s second impeachment.

As we approach the election with Trump still facing a decent (though declining) chance of winning, a lot of justifiably worried people are again choosing to spend their time whinging about Merrick Garland rather than doing something constructive to help defeat Trump.

There remains a belief that it was Garland’s job — and that Garland had the power — to disqualify Trump from running this race.

A remarkable instance is Rachel Bitecofer, a PoliSci professor who has written on negative partisanship, the way in which people vote against something rather than necessarily for something.

That Bitecofer is spending days in advance of the election doing PR for John Roberts is especially inexcusable because her using partisan anger to get them to vote.

Days before the election, she falsely told voters to be mad about Merrick Garland rather than mad about John Roberts, the guy who is directly responsible for eight months of delay, or Mitch McConnell, the guy with primary responsibility for disqualifying Trump.

She’s breaking her own rule.

That’s one reason I’ve been thinking about the January 6 impeachment: because, in fact, it was McConnell’s job to disqualify Trump from running this race, and McConnell chickened out. Oh, I think there are things that might have altered the outcome of impeachment. Most notably, I think Nancy Pelosi made a mistake in not appointing Liz Cheney to the prosecution team. That would have given Cheney an earlier opportunity to play the formidable leadership role that she later played on the January 6 Committee. Cheney, as a member of GOP leadership, was witness to conversations involving Mike Johnson and Kevin McCarthy that might have tipped the decision to call witnesses. And as her support for Kamala Harris’ campaign has shown, she has the stature to persuade Republicans to put country over party.

But I’m also thinking about why that impeachment failed. Republicans offered two kinds of excuses, one procedural and one evidentiary. Procedurally, McConnell and others argued, they didn’t have the authority to impeach Trump after he left office.

It was a cop out, but — as we’ll see — one that played a role in the immunity decision.

Trump also made some evidentiary arguments against the claim that Trump incited the attack. Trump argued, for example, that rioters planned their attack in advance, and so couldn’t have been incited by Trump.

Despite going to great lengths to include irrelevant information regarding Mr. Trump’s comments dating back to August 2020 and various postings on social media, the House Managers are silent on one very chilling fact. The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse. According to investigative reports all released after January 6, 2021, “the Capitol Police, the NYPD and the FBI all had prior warning there was going to be an attack on the Capitol…” 14

14 Ian Schwartz, John Solomon: Capitol Riot Was A “planned Attack,” Can’t Blame Trump; What Did Pelosi and McConnell Know?, Real Clear Politics (Jan. 13, 2021), https://www.realclearpolitics.com/video/2021/01/13/john_solomon_capitol_riot_was_a_planned_attack_c ant_blame_trump_what_did_pelosi_mcconnell_know.html

Leaning almost entirely on the presence of provocateur John Sullivan at the riot, Trump argued that because rioters had motives other than to support Trump, Trump couldn’t have been responsible.

The real truth is that the people who criminally breached the Capitol did so of their own accord17 and for their own reasons, and they are being criminally prosecuted. 18

17 Some anti-Trump, some ani-government. See, e.g., Alicia Powe, Exclusive: “Boogaloo Boi” Leader Who Aligns with Black Lives Matter, Gateway Pundit, (Jan. 17, 2021), https://www.thegatewaypundit.com/2021/01/boogaloo-boi-leader-aligns-black-lives-matter-boastedorganizing-armed-insurrection-us-capitol/. “The goal of swarming the home of the U.S. House of Representatives and Senate is “to revel in the breach of security while mocking the defenses that protect tyrants…whether that be Trump or others.” See also Robert Mackey, John Sullivan, Who Filmed Shooting of Ashli Babbitt, The Intercept (Jan. 14, 2021), https://theintercept.com/2021/01/14/capitol-riot-john-sullivan-ashli-babbitt/ (“The rapper, who later retweeted a brief video clip of himself and Sullivan inside the Rotunda that was broadcast live on CNN, told me in an Instagram message … “I’m far from a Trump supporter…I really don’t even get into politics at all. It was an experience for me and that’s really the only reason I was there.”)

18 See, e.g., Tom Jackman, Marissa J. Lank, Jon Swaine, Man who shot video of fatal Capitol shooting is arrested, remains focus of political storm, Washington Post (Jan. 16, 2021), https://www.washingtonpost.com/nation/2021/01/16/sullivan-video-arrested/.

Trump repeatedly treated his use of the word “fight” as figurative.

Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever. The only reference to force was in taking pride in his administration’s creation of the Space Force. Mr. Trump never made any express or implied mention of weapons, the need for weapons, or anything of the sort. Instead, he simply called on those gathered to peacefully and patriotically use their voices. [emphasis original]

Most crucially, Trump noted that the attack on the Capitol started before he finished speaking.

A simple timeline of events demonstrates conclusively that the riots were not inspired by the President’s speech at the Ellipse. “The Capitol is 1.6 miles away from Ellipse Park which is near the White House. This is approximately a 30-33 minute walk. Trump began addressing the crowd at 11:58 AM and made his final remarks at 1:12 PM… Protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”20

Trump also complained that the House Democrats used news reports of the rioters’ actions, rather than legal documents.

Some of these excuses are flimsy. Most rely on a rupture between the law prohibiting incitement, which prohibits both inciting an insurrection but also “set[ting] on foot, assist[ing], or engag[ing]” in insurrection, and the holding in Brandenburg, which limited incitement to those stoking imminent illegal action. Those who claim that Trump committed a crime in plain sight would have to rebut these defenses.

In the January 6 Committee’s incitement referral, the argument shifted away from arguing that Trump incited insurrection with just his speech, focusing more on Trump’s failure to stop the riot. They argued:

  • Trump summoned a mob and then further provoked the already rioting mob with his Tweet targeting Mike Pence.
  • Two of the rioters described their actions in terms of Trump’s orders.
  • After the riot was already started, Trump refused to take action to protect the Capitol.
  • Trump told close aides that Mike Pence deserved the chants threatening to hang him.
  • Trump has since — starting as early as September 2022, before either sedition trial — promised to pardon the rioters.

J6C did good work, but this insurrection referral was just as thin as their obstruction one. Their citation to January 6ers still relied on press reports rather than court records. And rather than relying on Oath Keeper Kelly Meggs’ hunt for Nancy Pelosi — Meggs had been convicted of sedition a few weeks earlier — the report relies on Cleveland Meredith, who never made the insurrection. They don’t incorporate the excellent work J6C did to reconstruct how Trump ordered language targeting Mike Pence back into his speech after Pence refused the President’s entreaties to steal the election.

To be sure, at that point in December 2022, prosecutors were still working on the case that Trump incited the mob. The Proud Boy leaders’ trial — which J6C’s decision to withhold their transcripts had delayed three months — wouldn’t start until early the next month and wouldn’t conclude until May 2023. And it would take another five months, until April 2023, for DOJ to present their best evidence that Trump incited someone at his speech — Danny Rodriguez — to go attack the Capitol and tase Michael Fanone; in the wake of Fischer, however, the sentences of Rodriguez’ co-conspirators have been sharply reduced. People complain that DOJ focused on the crime scene, but before you could even consider incitement, you’d have to account for the Proud Boys and people like Rodriguez.

Before SCOTUS started rewriting the laws applying to January 6, prosecutors were prepared to show specifics about Trump’s culpability for the attack. This is how Jack Smith’s team described Trump’s responsibility for his mob almost exactly a year ago.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

A year ago, prosecutors promised to prove that Trump sent his mob to the Capitol, where many of the people Trump had told to “fight” assaulted cops. They have argued for over a year that the mob was the tool that Trump used to obstruct the vote certification.

Last month, subsequent to Fischer, Jack Smith’s argument changed a bit. He relied more on an aid and abet theory of Trump’s liability for his mob’s actions.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001).

One way or another, however, as charged Jack Smith is relying on the 18 USC 1512(c)(2) charges to tie Trump to his mob. DOJ needs to sustain at least some of the obstruction charges against crime scene defendants to make this stick. And an opinion from Beryl Howell, freeing two Proud Boys from prison based on her judgment that nothing they did at the Capitol impaired the availability or integrity of the electoral certificates, will make that harder to do.

But let’s go back to whether Merrick Garland — or DOJ prosecutors who spent 30 months showing that Trump incited people like Danny Rodriguez to go nearly murder Michael Fanone, or Jack Smith — could then prove that Trump incited an insurrection.

In August 2023, when Smith indicted Trump, it was not clear he could do that. At the least, he faced the likelihood that Trump would argue his acquittal immunized him from being charged criminally. Indeed, even though Smith didn’t charge Trump with inciting an insurrection, he nevertheless sustained that argument all the way to the Supreme Court, causing precisely the delay that people like Bitecofer blame on Garland.

But in the last year, SCOTUS did three things to clarify the issue. As noted, SCOTUS interpreted 18 USC 1512(c)(2) in a way that may imperil Smith’s ability to tie Trump to the actions the mob took via his obstruction charge.

Even before that, on March 4, a unanimous Supreme Court held that the only way Merrick Garland could disqualify Trump from taking office — and technically he still could — would be to convict him 18 USC 2383.

Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.

And thanks to Trump’s own argument about impeachment, SCOTUS has clarified that he can be charged with 18 USC 2383. Sonia Sotomayor cited Mitch McConnell’s cop out in her dissent in the impeachment case.

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

John Roberts didn’t address the cop out in his majority opinion, but he did say that if the political process of impeachment failed for whatever reason — including failing to “muster the political will to impeach” (which sure sounds like why McConnell failed) — the criminal process remained open.

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

Whatever else SCOTUS did, on July 1, 2024, almost a full year after Smith charged Trump, John Roberts clarified that Smith could charge Trump with insurrection.

If Jack Smith had charged Trump with inciting insurrection on August 2023, the case still would have gone to SCOTUS. Given what a hack John Roberts is, he might have fought harder to avoid creating the following set of rules covering Trump. But between the three opinions this year, Roberts has held that:

  • Obstruction may be a reach for January 6, particular a conspiracy between Trump and his mob to obstruct the vote certification
  • Insurrection remains good law and the law disqualifies someone from serving as President
  • Trump’s acquittal on insurrection does not preclude him being charged with it

The legal questions about whether Merrick Garland could disqualify Trump from running were not resolved until August 7, and the evidentiary questions will not be decided for months yet.

More importantly, those claiming that DOJ could have charged Trump right away are missing a great many steps that had to happen first:

  • DOJ had to prosecute all the crime scene defendants — people like Danny Rodriguez — it will use to prove that Trump incited rioters; with Rodriguez, that was held up by COVID, the evidentiary challenges, and his own legal challenges to using his own confession against him. In the case of Rodriguez’ co-conspirator, that took until April 2023.
  • DOJ had to resolve the Proud Boy leaders’ case to explain Trump’s relationship to the riot that kicked off even as he was still speaking, which — even though Tarrio’s phone was seized before January 6 — took until May 2023.
  • DOJ had to obtain Executive Privilege-waived testimony from (at a minimum) Greg Jacob (who predicted violence), Stephen Miller (to get his testimony regarding the speech), Dan Scavino (to confirm details about the Tweet targeting Pence), and Mike Pence himself. Those challenges started when DOJ subpoenaed Jacob on June 15, 2022, and necessarily proceeded by steps, until Smith obtained Pence’s testimony on April 27, 2023.
  • DOJ had to exploit the phone used by Trump on January 6; it’s unclear when that happened.
  • DOJ had to force Elon Musk’s Twitter to comply with a warrant for Trump’s Twitter account. He stalled for 23 days in January and February 2023.
  • DOJ would probably need the contents of Mike Roman’s phone, which show him egging on a colleague to “Make them riot” at the TCF counting center in Detroit, and Boris Epshteyn’s phone, which implicates Steve Bannon in the conspiracy and through him makes Bannon’s prediction that “All Hell is going to break loose tomorrow” part of the conspiracy. Those phones were seized in September 2022, but I have argued that Roman and Bannon’s belated treatment as conspirators may suggest it took longer than 11 months to exploit those phones (which was known to happen with Enrique Tarrio and Scott Perry’s phones).

As I keep laying out, we know how long the investigation took. We know it took 14 months before the first crime scene defendants could be tried. We know it took over a year to exploit Tarrio’s phone. We know J6C caused at least three months of delay by withholding transcripts. We know it took ten months to get privilege-waived testimony from necessary witnesses.

And we know that John Roberts chose to delay the legal questions from December 2023 until August 2024, eight months.

Merrick Garland might yet charge Trump with insurrection. He might need to, to sustain the tie between Trump and his mob. But we have a pretty clear understanding of why that didn’t happen, couldn’t have happened, before tomorrow’s election.

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On the Legacy of Bill Barr’s Luzerne County Intervention

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Somewhere, I have a half-finished post about the way that Bill Barr refused to cooperate with three different Inspector General Reports reviewing his actions — his actions during May and June 2020 protests in DC, his intervention in the Roger Stone sentencing, and his decision to seek out a voter fraud cause he could publicize. (There’s at least one more investigation, probably the one into subpoenas targeting journalists and Congress, that is ongoing.)

I hope to return to that if we still have a democracy next week.

But I want to review the third of these, because it hangs over DOJ’s ongoing investigation of a number of suspect election crimes, including the arson targeting ballot drop boxes in Oregon and Washington earlier this week.

As you may recall, someone — who turned out to be a mentally disabled man — threw away nine mail-in ballots in Luzerne County, PA in September 2020. The US Attorney for Middle District of Pennsylvania in Scranton, David Freed, big-footed into the investigation, in part (the IG Report discovered) because Bill Barr was looking for some case to talk about. Barr told Trump about the case and Trump made public comment.

…These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. They were Trump ballots—eight ballots in an office yesterday in—but in a certain state and they were—they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen. This is what’s going to happen, and we’re investigating that. It’s a terrible thing that’s going on with these ballots. Who’s sending them, where are they sending them, where are they going, what areas are they going to, what areas are they not going to?… When they get there, who’s going to take care of them? So, when we find eight ballots, that’s emblematic of thousands of locations perhaps.

After which, Barr and Freed decided to release a public comment about the investigation, including that all nine of the discarded ballots had been cast for Trump (that turned out to be inaccurate; Freed issued a corrected statement days later). By the time Freed made that statement, it was pretty clear they weren’t going to charge the man involved; nevertheless, it wasn’t until the following January before the US Attorney’s Office revealed there would be no charges. Nevertheless, Freed also sent a letter to the county providing still more details from the investigation.

Barr refused to be interviewed for the Inspector General investigation, though his attorney kept providing new statements that didn’t answer all the questions about his behavior (one of my favorite Barr comments is that of course he didn’t advertise this case for political reasons because that would be inconsistent with his public statement on December 1 that there had been no decisive voter fraud). Barr spun the entire thing as an effort to reassure people.

Barr told the OIG in his letter to the Inspector General that he “favored and authorized putting out information along the lines of [MDPA’s] September 24 statement,” and Freed told the OIG that Barr specifically approved inclusion of investigative details in the statement, including the fact that “all nine ballots were cast for presidential candidate Donald Trump.” Barr stated in his letter that he favored including “the basic facts that prompted the investigation” in the MDPA statement as a way to quell public concerns about election integrity. Specifically, Barr stated: “Due to the involvement of local officials and county witnesses, I thought that further revelations of information about the incident were likely, potentially could come at any time, and could be mistaken.” Barr further wrote:

…I was concerned that the vagueness of the local officials’ statement, coupled with the Department’s silence, was contributing to undue speculation and potentially unsettling the public more than necessary about the election’s integrity. I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation. Among other things, doing so would help dispel needless mystery and speculation by delimiting the nature and scope of the issue being investigated.

Barr’s letter went on to assert that a public statement would “have a salutary deterrent effect” and serve as “a reminder to election administrators” of their responsibility to safeguard election integrity. Barr ultimately stated that he had determined, in his judgment, that “a strategy of remaining silent” about details of the Luzerne County ballot investigation “would have ended up doing more harm to the public interest than getting out in front with a more forthcoming statement in the first place.”76 Freed, for his part, told us that he believed releasing details about the investigation was important because it was the “best way” to keep the public officials running these elections “honest,” and because it would alert military voters that their ballots may have been discarded.77

In comments submitted to the OIG after reviewing a draft of this report, Barr stated that it was important at the outset to reassure the public “that there was a legitimate basis for the federal government to take over the investigation.” Barr continued: “The key fact that justified the federal government taking over the investigation was that only Trump ballots—no Biden ballots—had been found discarded.” Barr added that this fact was a “red flag” for investigators and “suggested that the discarding of ballots was not random or accidental, but potentially intentional.” In comments submitted after reviewing a draft of this report, Freed’s counsel echoed this sentiment, stating: “Had the statement not included [that the discarded ballots were all for President Trump], it would have omitted the operative fact that provided the predicate for federal involvement and would have left the public completely confused.” We found that this concern expressed by both Barr and Freed about federal involvement could just as easily have been satisfied by stating that all of the ballots were for the same presidential candidate, rather than identifying a particular candidate, which would have avoided injecting partisan considerations into a public statement by the Department. Moreover, the MDPA statement includes no information about the choices of the voters in the district’s congressional race, which would have been equally relevant to establish federal jurisdiction in the matter.

76 We were struck by the similarity between the justifications presented here and the explanation former FBI Director James Comey gave during our review of his conduct in advance of the 2016 election. In explaining why he announced to Congress that the FBI had resumed its investigation of then presidential candidate Hillary Clinton less than 2 weeks before the 2016 election, Comey told the OIG that he had determined, in his own judgment, that “there was a powerful public interest” in commenting on the Clinton email investigation, and that it would have been “catastrophic” to the Department and the FBI to not do so. DOJ OIG, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Oversight and Review Division Report 18-04 (June 2018), https://oig.justice.gov/reports/review-various-actions-federal-bureau-investigation-and-department-justiceadvance-2016, 365.

77 Neither Barr nor Freed, nor any witness we spoke to, suggested that § 1-7.400(C)’s second exception—permitting comment on investigations when “release of information is necessary to protect the public safety”—applied here.

Ultimately, DOJ IG found the whole thing to be wildly inappropriate, but because of the discretion afford the Attorney General to share information with the President and make public comment, it said that it could not find that Barr had engaged in misconduct; it did find that Freed had engaged in misconduct, both by blabbing about an ongoing investigation and doing so without consulting with Public Integrity before doing so.

DOJ referred both Barr and Freed to the Office of Special Counsel for a review of whether this was a Hatch Act violation.

We concluded that the MDPA statement did not comply with the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed; however, we did not find that either Barr or Freed committed misconduct because of ambiguity as to the applicability of Barr’s authority to approve the release of the statement pursuant to 28 C.F.R. § 50.2(b)(9). We found that Freed violated the DOJ policy prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials. We found that Freed also violated DOJ policies requiring employees to consult with PIN before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI. Finally, while we were troubled that Barr relayed to President Trump investigative facts about the Luzerne County matter, we concluded that Barr’s decision to provide that information to President Trump did not violate DOJ’s White House communications policy because the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President when a communication is permissible under the policy, as we found was the case here.

We make a number of recommendations in this report. First, as DOJ policy does not address what information Department personnel may include in a statement that is determined to be necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety, we recommend that the Department revise this policy to require that the information contained in a statement released pursuant to JM 1-7.400(C) be reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety. Second, we recommend that the Department make clear whether the Justice Manual’s Confidentiality and Media Contacts Policy, Justice Manual § 1-7.000, applies to the Attorney General. Third, we recommend that the Department clarify its policies to address whether any of the provisions of 28 C.F.R. § 50.2 remain Department policy in light of the existence of the Confidentiality and Media Contacts Policy contained in the Justice Manual. Fourth, if 28 C.F.R. § 50.2(b)(9) remains valid Department policy, we recommend that the Department require that requests to the Attorney General or Deputy Attorney General for approval to release information otherwise prohibited from disclosure and any approval to release such information pursuant to § 50.2(b)(9) be documented. Lastly, we recommend that the Department consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.

As noted above, the federal Hatch Act prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”89 The U.S. Office of Special Counsel has sole jurisdiction to investigate Hatch Act violations.90 Because the circumstances described in this report raise a question as to whether these former Department officials’ actions violated the Hatch Act, we are referring our findings to the Office of Special Counsel for its review and determination of that issue.

It’s not entirely clear how many of DOJ IG’s recommendations DOJ has implemented since this report was released in July.

But one way or another, the conduct described in this report would look indistinguishable from the investigations currently ongoing. That is, weighing in to talk about whether specific election crimes were being committed by Trump or Harris supporters (or none of the above, as was the case in Luzerne and may be the case if the Northwest arsonist really is motivated by Gaza, as the incendiary devices imply) would be deemed a violation of DOJ guidelines.

DOJ is only supposed to make comments to reassure people that something is under investigation. DOJ has done so, formally, in Washington.

“The US Attorney’s Office and the FBI want to assure our communities that we are working closely and expeditiously together to investigate the two incendiary fires at the ballot boxes in Vancouver, Washington, and the one in Portland, Oregon, and will work to hold whoever is responsible fully accountable,” US Attorney Tessa M. Gorman and Greg Austin, acting special agent in charge of the FBI’s Seattle office said in a statement Tuesday.

But you are not going to hear more than that unless and until DOJ charges someone.

On September 4, at the very press conference where he rolled out the indictment against the useful idiots being secretly paid by RT, on the very last day before the election blackout would go into place, Merrick Garland discussed the Election Threats Task Force that Lisa Monaco put into place back in June 2021.

DOJ has made statements about specific crimes — including the one Elon Musk is suspected of committing, as well as more general efforts to prosecute Election Fraud.

I promise you, that’s all you’re going to get unless charges are filed.

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Useful Idiots: DOJ Moves from Name-and-Shame to Name-and-Disrupt

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In the Election Task Force presser at which DOJ also rolled out two operations against Russian foreign malign influence last week, Merrick Garland described that the investigation into RT’s efforts to hide its efforts in the US was ongoing. “The charges unsealed this morning do not represent the end of the investigation. It remains active and ongoing.”

Indeed, last week, Tim Pool (believed to be Commentator-2 in the RT indictment) revealed that he would assist in the investigation (presumably meaning he’ll sit for the interview the FBI requested).

The language Pool used — the emphasis on a voluntary interview, one echoed by Benny Johnson’s more equivocal statement about his response to a similar FBI invitation — suggests DOJ is treating Pool, and so presumably most of the other commentators described in the indictment, as media under DOJ’s recently updated media guidelines.

Not so Lauren Chen herself — or at least, not Tenet Media. After all, the indictment describes several Discord servers — a general one, one focused on “funders,” another on “producers,” and another for one of the commentators — that all seem to be part of Tenet’s overarching Discord server run by Chen. To get legal process on that, as they clearly did, prosecutors would have had to convince DOJ’s National Security Division head, Matt Olsen, that Tenet or Chen either aren’t media or fit into one of the designated exceptions to the media rule.

Prosecutors might do that through Chen’s (or her spouse, Liam Donovan’s) past work with RT, after such time as it had registered as an agent of Russia in 2017. Or, if DOJ could prove that Chen knew the Russians she was working for were just an extension of her pre-existing RT contract, that might also satisfy the exception for “a foreign power or agent of a foreign power.” But even Chen’s acceptance of US-bound payments via wire from “Turkish Shell Entity-1” described as, “BUYING GOODS-INV.013-IPHONE 15 PRO MAX 512GB” would likely reach an aid-and-abet standard for RT’s alleged money laundering.

According to the indictment, the many cut-outs via which she (and by association, the podcasters) were being paid, were visible to her. None were in France, where the fictional funder of the project purportedly lived. She was witting to the money laundering alleged in the indictment, which probably qualifies her for an exception to the media guidelines. Charging that money laundering may be one step in justifying a broader investigation into Chen, including one that extends into her other roles in the far right network at Glenn Beck’s show and on Turning Point USA.

This post, which I started last week, was going to be a post laying out how all of last week’s activities seem to be an attempt to move beyond DOJ’s prior approach of name-and-shaming foreign hackers, to a name-and-disrupt approach. Lawfare did such a post earlier this week, and Alex Finley did one focused on RT and Doppelganger.

But I’m going to post the part of that larger post focused on RT now, because State just rolled out the next step of this name-and-disrupt operation: sharing intelligence showing how RT has become a front for Russia’s broader intelligence operations.

The State Department revealed declassified US intelligence findings that suggest RT is fully integrated into Russia’s intelligence operations around the world and announced it is launching a diplomatic campaign to provide countries with information about the risks associated with RT activities.

“Thanks to new information, much of which originates from RT employees, we know that RT possessed cyber capabilities and engaged in covert information and influence operations and military procurement,” Secretary of State Antony Blinken said Friday.

A key finding from the new US intelligence is that, for more than a year, the Russian government has quietly embedded an intelligence-gathering unit within RT that is focused on influence operations globally. That activity has been part of US officials described as a big expansion of RT’s role as an arm and mouthpiece of the Kremlin abroad. The activity goes beyond propaganda and covert influence operations to even include military procurement, according to US officials.

The flyer from State laying this out lists cover operations in Germany, France, and Argentina.

DOJ presumably timed last week’s indictment to beat the 60-day prohibition on announcements that might effect an election. But it was presumably also coordinated with Anthony Blinken’s trip to Eastern Europe, whence he just returned.

It appears that rolling out the indictment did two things. First, it laid out how this works, how a persona sets up an allegedly witting front, like Lauren Chen, to effectively recruit useful idiots on Russia’s behalf.

But by unrolling the indictment last week, DOJ likely facilitated further investigation of the Tenet operation.

It’s likely, for example, that DOJ needs cooperation from the podcasters like Benny and Pool to pursue an investigation into Chen any further. At the very least, prosecutors would have to lock them into statements that they had no idea they were working for RT. Those statements might not be entirely persuasive, mind you, but such statements would be crucial to showing that Chen was part of the RT deception, part of an effort by an agent of Russia to spread their propaganda via unwitting cut-outs.

By rolling out the indictment in the way they did, DOJ gave all the podcasters an incentive to immediately claim ignorance, if for no other reason than to preserve their own brand. As NBC curated, several of the podcasters did claim they were victims, within a day.

Pool said, in part, in a lengthy statement on X: “Should these allegations prove true, I as well as the other personalities and commentators were deceived and are victims. I cannot speak for anyone else at the company as to what they do or to what they are instructed.”

[Benny] Johnson, also on X, said: “A year ago, a media startup pitched my company to provide content as an independent contractor. Our lawyers negotiated a standard, arms length deal, which was later terminated. We are disturbed by the allegations in today’s indictment, which make clear that myself and other influencers were victims in this alleged scheme. My lawyers will handle anyone who states or suggests otherwise.”

[Tayler] Hansen said, in part, on X: “These allegations come as a complete shock to me and the other hosts at TENET Media. I want to be as clear as possible, I was never directed to report on any topic and had complete freedom and control over my reporting at all times. I would never agree to any arrangement where I am not the sole person in charge of the stories I cover and content I create.”

[Dave] Rubin said, in part, on X:” These allegations clearly show that I and other commentators were the victims of this scheme. I knew absolutely nothing about any of this fraudulent activity. Period.”

[Matt] Christiansen said, in part, on X: “At no point has anyone ever directed me what to say or not to say, and I would never agree to anything otherwise. My videos and streams for Tenet are exactly the same as my videos and streams on my personal channels. Every word is from me and me alone.” [my emphasis]

And after they did claim to be victims, the FBI called them up and said, “how would you like to sit for a voluntary interview … you know, as a victim?”

This is why I’m way more sympathetic to Pool and Benny’s claims they’re victims than others, who rightly argue they had to have known something sketchy was going on: not because I believe they were that stupid (both could have been, but Pool, who hired Cassandra Fairbanks after she was already tainted as a Sputnik persona, has been swimming in these waters for years). But because DOJ set this up to highly motivate them to position themselves, publicly, as victims and then capitalized on that to take further investigative steps.

But this operation also served to disrupt Russian support of propaganda, which is one of the reasons I view the efforts rolled out last week as an attempt to disrupt ongoing efforts, rather than just an attempt to name-and-shame.

After all, the podcasters (Rubin and Benny had already moved on; the others had not) are out of a hefty paycheck. Tim Pool will either have to find some right wing billionaire to pay wildly inflated rates for his apology for Russia from here on out, or he’ll have to scale back. It might take some weeks to do that. He might even have to give up politicizing the local skateboard park.

By sanctioning RT, among others, upon release of this indictment, not just the Tenet podcasters, but anyone else in the US knowingly on the RT grift, has to drop their gig immediately.

Presumably, a number of other people are doing quietly what former weapons inspector Scott Ritter did quite boisterously last week. Ritter — who, last month, had his house searched — posted that the sanctions on RT meant he had to immediately drop his RT gigs.

Per his claims in a Substack post released since then, Ritter was getting nothing close to what the podcasters were.

Amidst revelations of multi-million dollar deals where influencers were paid $100,000 a week to produce video content, and on-air hosts given million dollar salaries along with other perks, my relationship with Russian state-owned media pales into insignificance, contracted as an outside contributor compensated with what now, by comparison, seems a paltry $250-280 per item published, with the total amount received amounting to less than 7% of my total annual income.

Apparently, my negotiating skills are lacking—rather than insisting that I would not consider any offer under $5 million, I was content with compensation that matched the industry “norm” of between $150-300 per item published. Earlier this year, when RT thought that my interest in contributing had waned, they offered to double the price paid per article; I declined, insisting that we adhere to the letter of our agreement.

And now having done that — having forced people who were being supported by RT to drop their gigs — partners around the world can turn to unpacking similar operations in their own countries.

There are, undoubtedly, other nodes like the Tenet one, both in the US and around the world. This one may have been particularly important to disrupt before the election, because of Chen’s involvement with Turning Point, which will have a key role in Trump’s GOTV.

But whatever she was doing, TPA has cut her off.

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In One Week, Trump Suggests He’ll Eliminate Sanctions on Iran and Lies about Iran Hack to Supporters

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Donald Trump’s batshit crazypants answer regarding childcare was the part of his address to the New York Economic Club that deservedly attracted the most attention last week.

But I was interested in a response Trump gave to Sullivan & Cromwell Rodge Cohen regarding whether he would alter the sanctions against Russia.

H. RODGIN COHEN: Thank you, Bob, and thank you, Mr. President. Thank you. I would like to ask about the United States economic sanctions programs. These programs have been used, as you well know, to advance our national security interests, our foreign policy objectives, but they also have economic implications. And the most recent was the program against Russia in response to the Ukrainian – their invasion of Ukraine, where, for once, we got the support of all our allies. So my specific question is, would you strengthen or modify any of these economic sanctions programs, particularly Russia, including the pipeline you mentioned?

DONALD TRUMP: Well, it’s a great question. The problem with what we have with sanctions – and I was a user of sanctions, but I put them on and take them off as quickly as possible because, ultimately, it kills your dollar and it kills everything the dollar represents, and we have to continue to have that be the world currency. I think it’s important. I think it would be losing a war. If we lost – if we lost the dollar as the world currency, I think that would be the equivalent of losing a war.

That would make us a third-world country, and we can’t let it happen. So I use sanctions very powerfully against countries that deserve it, and then I take them off. Because look, you’re losing Iran, you’re losing Russia, China is out there trying to get their currency to be the dominant currency, as you know better than anybody. All of these things are happening.

You’re losing so many countries because there’s so much conflict with all of these countries that you’re going to lose that, and we can’t lose that. So I want to use sanctions as little as possible. One of the things that we have with tariffs is that I’ll say to them, you don’t honor the dollar as your world currency. Is that right?

You’re not going to do it? No, we’re not. I said, that’s okay. I’m going to put tariffs all over your product, and they’re going to say, sir, we’d love to honor the dollar as the world currency.

You know, tariffs, in addition to monetary and the money that we’ll take in, which will be bigger than you’ve ever seen in this country before, gives you tremendous political power for something like that, as an example. I stopped wars with the threat of tariffs. I stopped wars with two countries that mattered a lot. A lot of people would have been killed. [my emphasis]

Cohen asked only about Russia. But Trump’s answer included Iran (and wildly misrepresented what he did with sanctions on Iran, which Biden rescinded a month after becoming President). Trump seemed to suggest that sanctions, including those against Iran, had to be limited, or targeted countries would abandon the dollar.

I’ll leave it to economic experts to address whether his plan to enforce adherence to the dollar using tariffs could have the same effect.

I’m interested in the response, generally, because if there was a quo that Trump was supposed to provide after Russia helped Trump win in 2016, it was sanctions relief. Trump went to some effort — with an attempt to script Steve Bannon’s HPSCI testimony, Don Jr’s refusal to testify before a grand jury, Trump’s complete blow-off of a sanctions question from Mueller, and the attempt to reverse the Mike Flynn prosecution — to prevent Mueller from substantiating that Trump had taken steps to deliver that quo before the Russian investigation became overt.

Yet here he is again, suggesting he’ll end sanctions on Russia during the election.

But I’m particularly interested in Trump’s affirmative inclusion of Iran in the comment.

Sure, his inclusion of Iran in this discussion might reflect his belief that Jared’s effort to spread Trumpism around the Middle East will bring Iran into the fold — or perhaps it reflects the efforts of his Russian buddies to view Iran as an ally.

But I found it interesting given that Iran not only targeted his rat-fucker and his campaign manager for hacking, but also allegedly tried to hire hitmen to assassinate him.

All the more so given how Trump lied about DOJ’s focus on Iran when he responded to DOJ’s exposure of the RT influence laundering last week at his equally batshit appearance in Mosinee, WI.

Did you see? Three days ago, it started again. The Justice Department said Russia may be involved in our elections again. You see that, Mr. Congressman, great Congressman from Texas? You see that Russia — it’s Russia. And you know? The whole world laughed at him this time, 2.5 years, not a phone call made to Russia, not anything to do with Russia but stopping their pipeline and lots of other things that people approved. And they said just the other day, the Attorney General, we are looking at Russia, and I said, oh no. It’s Russia Russia Russia all over again. But they don’t look at China and they don’t look at Iran. They look at Russia. I don’t know what it is with poor Russia. This is very, very. But you know what? Russia would have never happened if I were President, attacking Ukraine would never have happened. I knew Putin. I knew him well. And you know, he endorsed — I don’t know if you saw the other day? He endorsed Ka-Mala. He endorsed Ka-Mala. I was very offended by that. I wonder why he endorsed Ka-Mala. Now, he’s a chess player. I endorse Ka-Mala. Should I be congressman, should I be upset about that? Now, it was done with a smile — Ron? Was it done with a smile? I think it was done. Maybe with a smile. I don’t know who the hell knows. Nobody is going to figure out. There are about 19 steps ahead of us but this whole Russian thing, nobody, was tougher on Russia in history than Trump and the person that knows that better than anyone is President Vladimir Putin.

Trump acknowledged the hack at his Bedminster presser — where he also predicted “we will be friendly with Iran.”

I originally thought this response from Trump was a response to the Ukraine question, I think, instead, he was responding to the hacking question.

Can you say anything about the hacking of your campaign?

I don’t like it. Really bad. I’m not happy with it. Our government shouldn’t let that happen.

Does there need to be a government response?

Yeah there should be. Our government should not let — they have no respect for our government.

Trump blamed the government after, earlier in the Potemkin Presser, he had already predicted that “we” will be friendly with Russia’s increasingly critical ally, Iran.

We will be friendly with Iran. Maybe, maybe not. But they cannot have a nuclear weapon. We were all set to make sure they did not have a nuclear weapon.

But last week, he lied about it. He lied and suggested that DOJ would never look at Iran’s influence operations, even though the Deep State has twice done what they did last week with Russia, attribute Iran’s effort to interfere in the election, in that case by harming Trump, and do so before the Trump campaign alerted the FBI to the hack.

Trump was targeted for hacking (and, allegedly, assassination) by Iran. And yet he’s hiding that when he dismisses DOJ’s similar focus on Russian influence operations.

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