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Machine for Fascism: The Two Stephens

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When I saw the news that Trump is planning a rally at Madison Square Garden — as the Nazis did in 1939 — I checked the date to see whether that was before or after Steve Bannon gets out of prison.

Bannon is due to get out on October 29; the rally is two days earlier, on October 27. On the current schedule, Bannon will be released nine days before the election, but not soon enough to attend what will undoubtedly be a larger version of the Nazi rant that Trump put on in Aurora the other day. Unless something disrupts it, Bannon will start trial for defrauding Trump supporters on December 9, days before the states certify the electoral vote.

This is the kind of timing I can’t get out of my head. According to FiveThirtyEight, Kamala Harris currently has a 53% chance of winning the electoral college. That’s bleak enough. But based on everything I know about January 6, I’d say that if Trump loses, there’s at least a 10% chance Trump’s fuckery in response will have a major impact on the transfer of power.

Experts on right wing extremism are suggesting the same thing. Here’s an interview Rick Perlstein did with David Neiwert back in August on the political violence he expects. Here’s a report from someone who infiltrated the 3 Percenters, predicting they would engage in vigilanteism.

Will Jack Smith unveil charges about inciting violence amid election violence?

As I wrote in this post, I suspect that Jack Smith considered, but did not, add charges when he decided to supersede Trump’s January 6 indictment. As I wrote, there is negative space in Smith’s immunity filing where charges on Trump’s funding for January 6 (and subsequent suspected misuse of those funds) might otherwise be.

More tellingly, there are four things that indicate Jack Smith envisioned — but did not yet include — charges relating to ginning up violence. As Smith did in a 404(b) filing submitted in December, he treated Mike Roman as a co-conspirator when he exhorted a colleague, “Make them riot” and “Do it!!!” Newly in the immunity filing, he treated Bannon as a co-conspirator, providing a way to introduce Steve Bannon’s prediction, “All Hell is going to break loose tomorrow!” shortly after speaking with Trump on January 5.  But Smith didn’t revise the indictment to describe Roman and Bannon as CC7 and CC8; that is, he did not formally include these efforts to gin up violence in this indictment. What appears to be the same source for the Mike Roman detail (which could be Roman’s phone, which was seized in September 2022; in several cases it has taken a year to exploit phones seized in the January 6 investigation) also described that Trump adopted the same tactic in Philadelphia.

The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22

Even more notably, after saying (in that same December 404(b) filing) that he wanted to include Trump’s endorsement and later ratification of the Proud Boys’ attack on the country to “demonstrate[] the defendant’s encouragement of violence,” Smith didn’t include them in the immunity filing whatsoever — not even in the section where the immunity filing described Trump’s endorsement of men who assaulted cops. If I’m right that Smith held stuff back because SCOTUS delayed his work so long it butted into the election season, it would mean he believes he has the ability to prove that Trump deliberately stoked violence targeting efforts to count the vote at both the state and federal level, but could not lay that out until after November 5, after which Trump may be in a position to dismiss the case entirely.

And the two Stephens — Bannon, whose War Room podcast would serve to show that Trump intended to loose all Hell on January 6, and Miller, who added the finishing touches to Trump’s speech making Mike Pence a target for that violence — appear to have a plan to do just that, working in concert with Elon Musk.

The two Stephens say Trump must be able to stoke violence with false claims as part of his campaign

As I laid out in June, just as Bannon was reporting to prison, both Stephens were arguing that they had a right to make false claims that had the effect of fostering violence.

Bannon filed an emergency appeal aiming to stay out of prison arguing he had to remain out so he could “speak[] on important issues.”

There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.

No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.

That claim came just after he had given a “Victory or Death” speech at a Turning Point conference.

In the same period, Stephen Miller attempted to intervene in Jack Smith’s efforts to prevent Trump from making false claims that the FBI tried to assassinate him when they did a search of his home governed by a standard use-of-force policy, knowing full well he was gone. (Aileen Cannon rejected Miller’s effort before she dismissed the case entirely.)

Miller argued that the type of speech that Smith wanted to limit — false claims that have already inspired a violent attack on the FBI — as speech central to Trump’s campaign for President.

The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.

Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.

Miller called Trump’s false attack on the FBI peaceful political discourse.

Importantly, Miller dodged an argument Smith made — that Trump intended that his false claims would go viral. He intended for people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignored the exhibit showing Bannon parroting Trump’s false claim on his War Room podcast.

It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.

Note, Bannon did this with Mike Davis, a leading candidate for a senior DOJ position under Trump, possibly even Attorney General, who has vowed to instill a reign of terror in that position.

But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.

Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.

Back in June, Bannon said he had to remain out of prison because he played a key role in Trump’s campaign. And Miller said that even if Bannon deliberately parroted Trump’s false incendiary claims, that was protected political speech as part of Trump’s campaign.

Miller helps eliminate checks on disinformation and Nazis on Xitter

But this effort has been going on for years.

A report that American Sunlight released this week describing how systematically the right wing turned to dismantling the moderation processes set up in the wake of the 2016 election points to Miller’s America First Legal’s role in spinning moderation by private actors as censorship. Miller started fundraising for his effort in 2021.

[F]ormer Trump Senior Advisor Stephen Miller[] founded America First Legal (AFL). 6 An unflinchingly partisan organization, the home page of AFL’s website claims its mission is to “[fight] back against lawless executive actions and the Radical Left,” 7 which it accomplishes through litigation. AFL has, to date, engaged in dozens of efforts to silence disinformation research through frivolous lawsuits and collaboration with Jordan and the House Judiciary Committee’s harassment of researchers. In a digital age where social media is more prevalent than ever and social media platforms have more power than ever, AFL’s efforts to politicize legitimate efforts to combat disinformation – by social media platforms and independent private-citizen researchers – have significantly damaged the information environment. To fully realize these efforts and their impacts, we explore the founding and operations of AFL.

[snip]

After its launch in early 2022, AFL began its line of litigation with a series of FOIA requests relating to the State Department’s Global Engagement Center (GEC) and the Cybersecurity and Infrastructure Security Agency (CISA). These requests marked a noticeable uptick in conservative claims about censorship. AFL’s FOIA requests alleged these government agencies improperly partnered with social media platforms and asked for content around Hunter Biden’s laptop to be removed. 22 In its FOIA request to CISA, AFL writes 23 :

On March 17, 2022, the New York Times revealed that “[Hunter] Biden’s laptop was indeed authentic, more than a year after … much of the media dismissed the New York Post’s reporting as Russian disinformation.” When the story was first accused of being disinformation, X/Twitter suspended the New York Post’s account for seven days, and Facebook “’reduc[ed]’ the story’s distribution on its platform while waiting for third-party fact checkers to verify it.” This was just one of many instances where social media companies censored politically controversial information under the pretext of combatting MDM even when the information later became verified.

Then, as now, AFL offered no evidence to support its claim that any federal agency coerced, pressured, or mandated that social media platforms remove any such laptop-related content. As this report will cover in depth, social media platforms have their own, robust content moderation policies in regards to false and misleading content; as private companies, they implement these policies as they see fit.

The American Sunlight report describes how some of the key donations to AFL were laundered so as to hide the original donors (and other of its donations came from entities that had received the funds Trump raised in advance of January 6).

But as WSJ recently reported, Musk started dumping tens of millions into Miller’s racist and transphobic ads no later than June 2022.

In the fall of 2022, more than $50 million of Musk’s money funded a series of advertising campaigns by a group called Citizens for Sanity, according to people familiar with his involvement and tax filings for the group. The bulk of the ads ran in battleground states days before the midterm elections and attacked Democrats on controversial issues such as medical care for transgender children and illegal immigration.

Citizens for Sanity was incorporated in Delaware in June 2022, with salaried employees from Miller’s nonprofit legal group listed as its directors and officers.

There are questions of whether Miller grew close to Musk even before that.

In the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller — texted Musk personally to raise the sensitivities of restoring Trump, whom the person called, “the boss,” to Xitter.

And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.

“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.

Whoever this was — and people were guessing it was Miller in real time — someone close enough to Elon to influence his purchase of Xitter was thinking of the purchase in terms of bringing back “right wingers,” including Trump.

Yesterday, the NYT reported on how the far right accounts that Musk brought back from bannings have enjoyed expanded reach since being reinstated. Some of the most popular accounts have laid the groundwork for attacking the election.

As the election nears, some of the high-profile reinstated accounts have begun to pre-emptively cast doubt on the results. Much of the commentary is reminiscent of the conspiracy theories that swirled after the 2020 election and in the lead-up to the Jan. 6 riot.

Since being welcomed back to the platform, roughly 80 percent of the accounts have discussed the idea of stolen elections, with most making some variation of the claim that Democrats were engaged in questionable voting schemes. Across at least 1,800 posts on the subject, the users drew more than 13 million likes, shares and other reactions.

Some prominent accounts shared a misleading video linked to the Heritage Foundation, a conservative think tank, that used shaky evidence to claim widespread voter registration of noncitizens. One of the posts received more than 750,000 views; Mr. Musk later circulated the video himself.

But it’s more than just disinformation. Xitter has played a key role in stoking anti-migrant violence across the world. In Ireland, for example, Alex Jones’ magnification of Tommy Robinson’s tweets helped stoke an attack on a shelter for migrants.

As with mentions of Newtownmountkennedy, users outside of Ireland authored the most posts on X mentioning this hashtag, according to the data obtained by Sky News. 57% were posted by accounts based in the United States, 24.7% by Irish users. A further 8.8% were attributed to users based in the United Kingdom.

While four of the top five accounts attracting the most engagement on posts mentioning this hashtag were based in Ireland, the fifth belongs to Alex Jones, an American media personality and conspiracy theorist. Jones’s posts using this hashtag were engaged with 10,700 times.

Jones continued to platform Robinson as he stoked riots in the UK.

Several high-profile characters known for their far-right views have provided vocal commentary on social media in recent days and have been condemned by the government for aggravating tensions via their posts.

Stephen Yaxley-Lennon, who operates under the alias Tommy Robinson, has long been one of Britain’s most foremost far-right and anti-Muslim activists and founded the now-defunct English Defence League (EDL) in 2009.

According to the Daily Mail, Robinson is currently in a hotel in Cyprus, from where he has been posting a flurry of videos to social media. Each post has been viewed hundreds of thousands of times, and shared by right-wing figures across the world including United States InfoWars founder Alex Jones.

And Elon Musk himself famously helped stoke the violence, not just declaring civil war to be “inevitable,” but also adopting Nigel Farage’s attacks on Keir Starmer.

On Monday, a spokesperson for UK Prime Minister Keir Starmer addressed Musk’s comment, telling reporters “there’s no justification for that.”

But Musk is digging his heels in. On Tuesday, he labeled Starmer #TwoTierKier in an apparent reference to a debunked claim spread by conspiracy theorists and populist politicians such as Nigel Farage that “two-tier policing” means right-wing protests are dealt with more forcefully than those organized by the left. He also likened Britain to the Soviet Union for attempting to restrict offensive speech on social media.

In the UK, such incitement is illegal. But it is virtually impossible to prosecute in the United States. So if Elon ever deliberately stoked political violence in the US, it would be extremely difficult to stop him, even ignoring the years of propaganda about censorship and the critical role some of Musk’s companies play in US national security.

Bannon’s international fascist network

The ties to Nigel Farage go further than Xitter networks.

In a pre-prison interview with David Brooks (in which Brooks didn’t mention how Bannon stands accused of defrauding Trump’s supporters in his New York case), Bannon bragged about turning international fascists into rocks stars.

STEVE BANNON: Well, I think it’s very simple: that the ruling elites of the West lost confidence in themselves. The elites have lost their faith in their countries. They’ve lost faith in the Westphalian system, the nation-state. They are more and more detached from the lived experience of their people.

On our show “War Room,” I probably spend at least 20 percent of our time talking about international elements in our movement. So we’ve made Nigel a rock star, Giorgia Meloni a rock star. Marine Le Pen is a rock star. Geert is a rock star. We talk about these people all the time.

And in August, Bannon’s top aide, Alexandra Preate, registered as a foreign agent for Nigel Farage. She cited arranging his participation in:

  • A March 2023 CPAC speech
  • Discussions, as early as August 2023, about a Farage speech at RNC
  • A January 2024 pitch for Farage to speak at a Liberty University CEO Summit that was held last month
  • Talks at “Sovereignty Summits” in April through July
  • April arrangements for a May 1 talk at Stovall House in Tampa, Florida
  • Discussions in May about addressing CPAC in September
  • May 2024 media appearances on the Charlie Kirk Show, Fox Business Larry Kudlow show, Bannon’s War Room, Seb Gorka Show, Newsmax, WABC radio
  • More discussions about Farage’s attendance at the RNC
  • Early August discussions about an upcoming trip to the US

That is, Preate retroactively registered as Farage’s agent after a period (July to August) when he was spreading false claims that stoked riots in his own country.

Preate also updated her registration for the authoritarian Salvadoran President, Nayib Bukele (which makes you wonder whether she had a role in this fawning profile of Bukele).

Miller serves as opening act for Trump’s Operation Aurora

Before Trump’s speech in Aurora, CO the other day — at which he spoke of using the Alien and Sedition Act against what he deemed to be migrants — Stephen Miller served as his opening act, using the mug shots of three undocumented immigrants who have committed violent crimes against American women to rile up the crowd, part of a years-long campaign to falsely suggest that migrants are even as corrupt as violent as white supremacists.

Stephen Miller started laying the infrastructure to improve on January 6 from shortly after the failed coup attempt (and he did so, according to the American Sunlight report, with funds that Trump may have raised with his Big Lie). In recent weeks, Trump — with Miller’s help — has undermined the success of towns in Ohio and Colorado with racial division and has led his own supporters hard hit by hurricanes to forgo aid to which they’re entitled with false claims that Democrats are withholding that aid.

By targeting people like North Carolina Governor Roy Cooper and Kamala Harris, Trump is targeting not just Democrats, but also people who play a key role in certifying the election.

If Cooper and Harris were incapacitated before they played their role in certifying the election, they would be replaced by Mark Robinson and whatever president pro tempore a Senate that is expected to have a GOP majority after January 4 chooses, if such a choice could be negotiated in a close Senate in a few days.

And all the while, the richest man in the world, who claims that he, like Steve Bannon and Donald Trump, might face prison if Vice President Harris wins the election, keeps joking about assassination attempts targeting Harris.

We have just over three weeks to try to affect the outcome on November 5 — to try to make it clear that Trump will do for America what he has done in Springfield, Aurora, and Western North Carolina, deliberately made things worse for his own personal benefit. But at the same time, we need to be aware of how those efforts to make things worse are about creating a problem that Trump can demand emergency powers to solve.

Trump’s Handlers Attempt to Retcon His Fascist Attack on Haitian Migrants

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According to Marc Caputo, the cat-eating screech that was one of the most disastrous moments of Donald Trump’s debate was supposed to be a planned bit.

DONALD TRUMP HAD A PLAN FOR Tuesday night’s presidential debate. But then the cat, neither abducted nor consumed, got his tongue and talking points.

If the moderators hit him for spreading a baseless urban legend about Haitian immigrants eating cats in the small city of Springfield, Ohio, the ex-president was supposed to execute a classic rope-a-dope strategy: He would dodge the punch and place the blame for the story on town locals; then he’d pivot to attacking Vice President Kamala Harris and the media over the toll of rampant immigration on housing, healthcare, and crime in Springfield.

It was all strategized in advance. There was just one problem: It required Trump to execute it.

But when the topic of immigration came up, the former president got sidetracked by taking umbrage with Harris’s insistence that he had uninspiring rallies. He then mentioned the possibility of World War III. Only after that did he launch into the rumors of pet-eating, and then without preparing viewers about the backstory.

“In Springfield, they’re eating the dogs,” Trump said. “The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there. And this is what’s happening in our country. And it’s a shame.”

This explanation — that Trump was only supposed to raise this if moderators dinged him for spreading a racist hoax — doesn’t make sense on several levels.

That’s true, most of all, because Trump himself raised the hoaxes he’s been spreading about Springfield and Aurora in his very first response, which was supposed to be about the economy.

On top of that, we have millions of people pouring into our country from prisons and jails, from mental institutions and insane asylums. And they’re coming in and they’re taking jobs that are occupied right now by African Americans and Hispanics and also unions. Unions are going to be affected very soon. And you see what’s happening. You see what’s happening with towns throughout the United States. You look at Springfield, Ohio. You look at Aurora in Colorado. They are taking over the towns. They’re taking over buildings. They’re going in violently. These are the people that she and Biden let into our country. And they’re destroying our country. They’re dangerous. They’re at the highest level of criminality. And we have to get them out. We have to get them out fast. I created one of the greatest economies in the history of our country. I’ll do it again and even better.

DAVID MUIR: We are going to get to immigration and border security during this debate. [my emphasis]

Debate first responses at any debate reflect a campaign’s primary focus and should be fresh from debate prep (though Trump invited Laura Loomer to fly to the debate with him, which is whom Mike Allen and Jim “Pool Boy” VandeHei blame for the meltdown). And Harris hadn’t yet started the process of beating Trump to a quivering mess yet, so that can’t explain why Trump raised it unbidden.

Trump repeated his immigration attack (this time not mentioning Aurora and Springfield) in response to Harris’ accusation that Trump exported chip technology to China.

But when you look at what she’s done to our country and when you look at these millions and millions of people that are pouring into our country monthly where it’s I believe 21 million people, not the 15 that people say, and I think it’s a lot higher than the 21. That’s bigger than New York state. Pouring in. And just look at what they’re doing to our country. They’re criminals. Many of these people coming in are criminals. And that’s bad for our economy too. You mentioned before, we’ll talk about immigration later.

Well, bad immigration is the worst thing that can happen to our economy. They have and she has destroyed our country with policy that’s insane. Almost policy that you’d say they have to hate our country.

His cat screech came not in response to a question to him about the hoax he had already raised (what Caputo claimed it was supposed to be), but as a follow-up to Harris’ response to Muir’s question about why the Biden Administration had waited so long to implement executive orders.

DAVID MUIR: But my question to you tonight is why did the administration wait until six months before the election to act and would you have done anything differently from President Biden on this?

VICE PRESIDENT KAMALA HARRIS: So I’m the only person on this stage who has prosecuted transnational criminal organizations for the trafficking of guns, drugs, and human beings. And let me say that the United States Congress, including some of the most conservative members of the United States Senate, came up with a border security bill which I supported. And that bill would have put 1,500 more border agents on the border to help those folks who are working there right now over time trying to do their job. It would have allowed us to stem the flow of fentanyl coming into the United States. I know there are so many families watching tonight who have been personally affected by the surge of fentanyl in our country. That bill would have put more resources to allow us to prosecute transnational criminal organizations for trafficking in guns, drugs and human beings. But you know what happened to that bill? Donald Trump got on the phone, called up some folks in Congress, and said kill the bill. And you know why? Because he preferred to run on a problem instead of fixing a problem. And understand, this comes at a time where the people of our country actually need a leader who engages in solutions, who actually addresses the problems at hand. But what we have in the former president is someone who would prefer to run on a problem instead of fixing a problem. And I’ll tell you something, he’s going to talk about immigration a lot tonight even when it’s not the subject that is being raised. And I’m going to actually do something really unusual and I’m going to invite you to attend one of Donald Trump’s rallies because it’s a really interesting thing to watch. You will see during the course of his rallies he talks about fictional characters like Hannibal Lecter. He will talk about windmills cause cancer. And what you will also notice is that people start leaving his rallies early out of exhaustion and boredom. And I will tell you the one thing you will not hear him talk about is you. You will not hear him talk about your needs, your dreams, and your, your desires. And I’ll tell you, I believe you deserve a president who actually puts you first. And I pledge to you that I will.

DAVID MUIR: Vice President Harris, thank you. President Trump, on that point I want to get your response.

FORMER PRESIDENT DONALD TRUMP: Well, I would like to respond.

DAVID MUIR: Let me just ask, though, why did you try to kill that bill and successfully so? That would have put thousands of additional agents and officers on the border.

FORMER PRESIDENT DONALD TRUMP: First let me respond as to the rallies. She said people start leaving. People don’t go to her rallies. There’s no reason to go. And the people that do go, she’s busing them in and paying them to be there. And then showing them in a different light. So, she can’t talk about that. People don’t leave my rallies. We have the biggest rallies, the most incredible rallies in the history of politics. That’s because people want to take their country back. Our country is being lost. We’re a failing nation. And it happened three and a half years ago. And what, what’s going on here, you’re going to end up in World War 3, just to go into another subject. What they have done to our country by allowing these millions and millions of people to come into our country. And look at what’s happening to the towns all over the United States. And a lot of towns don’t want to talk — not going to be Aurora or Springfield. A lot of towns don’t want to talk about it because they’re so embarrassed by it. In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there. And this is what’s happening in our country. And it’s a shame. As far as rallies are concerned, as far — the reason they go is they like what I say. They want to bring our country back. They want to make America great again. It’s a very simple phrase. Make America great again. She’s destroying this country. And if she becomes president, this country doesn’t have a chance of success. Not only success. We’ll end up being Venezuela on steroids.

DAVID MUIR: I just want to clarify here, you bring up Springfield, Ohio. And ABC News did reach out to the city manager there. He told us there have been no credible reports of specific claims of pets being harmed, injured or abused by individuals within the immigrant community —

FORMER PRESIDENT DONALD TRUMP: Well, I’ve seen people on television

DAVID MUIR: Let me just say here this …

FORMER PRESIDENT DONALD TRUMP: The people on television say my dog was taken and used for food. So maybe he said that and maybe that’s a good thing to say for a city manager.

DAVID MUIR: I’m not taking this from television. I’m taking it from the city manager.

FORMER PRESIDENT DONALD TRUMP: But the people on television say their dog was eaten by the people that went there.

DAVID MUIR: Again, the Springfield city manager says there’s no evidence of that.

FORMER PRESIDENT DONALD TRUMP: We’ll find out

DAVID MUIR: Vice President Harris, I’ll let you respond to the rest of what you heard.

VICE PRESIDENT KAMALA HARRIS: Talk about extreme.

There’s little doubt that the psychic damage Harris did by calling his rallies “bor[ing]” rattled his response, leading him to first defend the virility of his rallies and only then to deliver the purportedly prepackaged Springfield comment, delivered as screech.

But what happened next is significant, given the retconning that Caputo got fed.

Trump’s meltdown might not have been so damaging were it not for Muir’s fact check, one of just three from the entire debate, but nevertheless the one that has led right wing trolls to offer bounties to try to create a less pathetic explanation than, “the people on my TV say.”

The timeline shows that Trump raised Springfield, what Caputo calls, “a baseless urban legend,” himself, when he was still fresh and unsullied by Harris’ attacks. Then he had his screech. And then Muir offered a fact check that — let’s face it — right wingers didn’t expect (which therefore Trump’s debate preppers likely didn’t either).

No one expected the push back that Muir actually gave after the fact, yet it is central to the effort to retcon the screech.

As an interlude, make sure you seek out the various versions of Trump’s screech set to music, which I first saw from this guy.

A few more things happened, though, between Harris’ pummeling of Trump, his screech, and the time when people started  retconning it with Caputo: Stephen “Discount Goebbels” Miller similarly got pummeled, in that case by a Venezuelan journalist, José del Pino, asking why Miller — and by extension, Trump — have this ridiculous belief that Nicolas Maduro brought down crime by exporting criminals to the United States.

So before someone tried to retcon Trump’s meltdown with Caputo, both Trump and Miller had had humiliating meltdowns.

And before that, Miller had spent most of the two days leading up to the debate disseminating these same false claims, RTing at least ten tweets dehumanizing Haitians, especially in Springfield.

The retconning fed to Caputo lets not just Miller off the hook for spreading what Caputo calls “a baseless urban legend.” It lets JD Vance off too.

After all, Ohio Senator Vance was a key vector in the pet-eating story.

Even after people explained there was no evidence for it, even as he acknowledge that “these rumors [may] turn out to be false,” JD nevertheless encouraged other trolls to “keep the cat memes flowing.”

Caputo credulously accepts that JD’s explanation to Kaitlan Collins in the spin room (in an interview given around the same time that Miller was melting down when called on the fact that he was parroting Maduro’s false stats) that meming was just a way to highlight the underlying tensions in a small city with an influx of new residents, of whatever race and national origin.

It was left to his vice presidential nominee, JD Vance, to play cleanup and showcase the campaign’s strategy during an appearance on CNN 45 minutes after the debate had ended.

“This town has been ravaged by 20,000 migrants coming in . . . This is what Kamala Harris’s border policies have done,” Vance said. “The media didn’t care about the carnage wrought by these policies until we turned it into a meme about cats . . . If we have to meme about it to get the media to care, we’re going to keep on doing it because the media should care about what’s going on.”

The primary cleanup here was Caputo’s.

Caputo doesn’t mention Collins’ comparison of this hoax to Bigfoot. He doesn’t mention how Vance bulldozed through Collins’ point that Trump raised this even though officials have no evidence.

If someone calls your office and says they saw Bigfoot, that doesn’t mean they saw Bigfoot. You have a sense of responsibility as a running mate, he certainly does as the candidate to not promote false information, right?

Similarly, Caputo cleaned up what he describes Jason Miller’s attempt to “polish” this conspiracy.

In a CNN interview Wednesday morning, Miller also tried to polish Trump’s immigration remarks from the night before. He insisted the story of pet-eating Haitians wasn’t far-fetched by boosting a story from the conservative website the Federalist about a Springfield resident who recently called 911 to report four Haitians each carrying a goose (but the story didn’t mention cats, dogs, or pets).

Miller complained about the bias of the moderators for failing to fact-check Harris on issues like fracking and said they should have talked about the Biden-Harris administration’s “airlifts” of Haitian migrants into the United States.

[snip]

Later that morning on Truth Social, Trump posted an image of the police report as well as video of a woman in the city of Canton, Ohio (which is 173 miles away from Springfield) who was arrested for eating a cat. The woman is a U.S. citizen and not of Haitian descent, according to press reports.

Yes, Caputo noted how ridiculous it was for Miller and others to point to Haitians carrying geese (or a troubled non-immigrant woman 100 miles away who did eat a pet) to claim their Haitian hoax was defensible.

He didn’t note that Miller was on CNN falsely claiming the Haitians in Springfield are illegal (or that they were brought in deliberately). That is, Caputo cleaned up the false premise here: that Trump and his team are calling legal immigrants illegals, and on that basis fearmongering about someone eating your pet kitty.

This is the real issue, both in the dissemination and Caputo’s willingness to repackage it.

All the evidence suggests this is not “a baseless urban legend.” Rather, it is a packaged neo-Nazi attack designed to sow violence against migrant communities.

According to a local leader in the Haitian community, while there were tensions, none of that boiled up until a car accident involving a legal Haitian ended up killing a school boy.

What were things like over the course of the first couple of years that you were living in Springfield? Was the community welcoming?

We were just here working peacefully and caring about our family and all of this. The community was okay. There was still a group of people in Springfield who saw the coming of the Haitians as a threat. But normally, generally, the community was so open with us. We had so many people working with us and things like this. Until the recent incident of the recent bus accident and people have been building up on that just to tell bad news about us.

So you think the bus accident was when things really started to change?

Yeah, it triggered it. There was some tension before but not like it came after the bus accident.

A neo-Nazi group responded to that by organizing a march in the town. And then one of them created a conflict at a local city commission.

Late last month, a neo-Nazi group called Blood Ties organized a march outside the Springfield Jazz and Blues Festival. At the Aug. 26 city commission meeting, Drake R. Berentz took credit for organizing that march while introducing himself via an anti-Black pseudonym. He was promptly removed from the hearing after stating, “Crime and savagery will only increase with every Haitian you bring in.”

A national far right network with intimate ties to Trump’s team start magnifying disinformation from Springfield.

Shortly after, racist claims aimed at the state’s Haitian community began to surge online, boosted by known disinformation outlets and eventually echoed by GOP officials.

The unfounded narrative that Haitian immigrants were eating pets reached national attention after being repeated this week first by Republican vice presidential nominee J.D. Vance (the junior senator from Ohio) and then his running mate Donald Trump at the latter’s debate with Kamala Harris.

The origins of the conspiracy theory remain largely unknown, but a New Lines investigation has identified several points of amplification from known spreaders of disinformation. Its fairly rapid spread reveals how extremist narratives travel from the fringes of the internet into the mouths of politicians, seemingly overnight.

Less than a week earlier, End Wokeness, an account on X (formally Twitter) that has been connected in the past to the white nationalist Jack Posobiec, shared a Facebook post alleging that Haitian immigrants were eating pets in Ohio. The claim was quickly repeated by the political commentator and founder of Turning Point USA, Charlie Kirk, during his broadcast hosted on Steve Bannon’s media network.

Kirk commented that this brought the United States “one step closer to the great replacement,” referring to a white nationalist narrative that claims non-white immigrants are replacing white people in the U.S. The narrative was originally obscure but has been increasingly embraced by the GOP mainstream in recent years.

Kirk is a close associate of Posobiec. Both his claims and the End Wokeness account’s tweet reference a single anonymous post on a private Facebook group as proof of their claims.

This was followed up on Sept. 8, when the End Wokeness account tweeted a video from a Springfield City Commission meeting where an influencer and podcaster named Anthony Harris claimed Haitian immigrants were eating ducks in the parks. This seemingly spawned from a repurposed image of a man holding a dead Canada goose in Columbus, Ohio, taken a month before.

This entire story, then, is about creating false stories in order to stoke far right violence against immigrants. It’s not an urban legend. It is deliberate propaganda.

It is already having real effects on the Haitians in Springfield.

And as such, it’s little different from the deliberate disinformation used to stoke the Dublin or Southport riots. Indeed, the networks behind all of them have very significant overlaps.

What is different here is that Trump is running to regain the presidency on such a platform of such disinformation. Trump’s team is riddled with participants in this transnational effort to stoke fascism with viral disinformation targeting immigrants; some of them aren’t even serving prison terms in Danbury FCI for covering up January 6! And Elon Musk has been all too happy to encourage it on Xitter.

Because of this — because of the way Trump’s team participates in this — Trump’s meltdown calls for far more than embarrassed retconning.

I don’t doubt that this was an orchestrated, intentional smear, one that Trump flubbed because Kamala Harris first made Trump insecure and then because Muir came ready with a fact-check. The fact that Trump’s handlers are trying to excuse it away as — in the Axios version — a matter of the fascist conspiracists he has admitted into his old man bubble, is a tell, but also an opportunity.

  1. He’s haunted. He can’t stand being seen as a loser. So it’s impossible to fully admit he didn’t win in 2020. He looks to distractions like crowd size and adoring coverage for solace. So, seemingly silly taunts — like Harris’ “people start leaving his rallies early out of exhaustion and boredom” — hit deep.
  2. He falls for fake news. For a guy who made “fake news” a household term, he falls for it often and easily. It wasn’t hard to learn that the allegations of Haitians eating pet dogs and cats were silly and wrong. But far-right activist Laura Loomer was on the plane ride to the debate with him, egging him on.
  3. He’s old. A wise man told us three types of people never change: Old guys. Rich guys. Guys with their names on the building. So the chances that Trump — a 78-year-old, self-proclaimed billionaire with his name on buildings, bottles and golf courses — will change are, um, nil.
  4. His bubble lies to him. All politicians live in self-protective bubbles. But Trump’s, which extends from his social media cocoon to his Mar-a-Lago luxury, is almost impossible to penetrate with hard truths. There’s always a Loomer to tell Trump he’s winning … even when he’s not.

Usually, this far right disinformation is supposed to be a little smoother than this — like JD delivered it, rather than the screech with which Trump did.

But, in spite of the excuses fed to Bulwark and Axios, the screech is the real thing. It is who Trump is. It is the ugliness with which this is all intended.

And rather than accepting excuses because the former President’s delivery made the ugliness readily visible in front of millions, we need to be clear that these memes are not, in fact, an effort to focus attention on the growing pains of a town with booming population.

Rather, they are a deliberate attempt to dehumanize people to either sow fear among voters — Trump even targeted this at union voters! — or violence if that fails.

After Kamala Harris rattled his ego, Trump showed himself for who he and his extended network really are. When people show you who they really are, believe them.

Update: Paul Waldman notes the intentionality of all this as well.

“If You Are a Psycho and You Want to Make Headlines”

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JD Vance has gotten a lot of deserved criticism for the offhand way he dismissed the Apalachee School shooting.

If you are a psycho and you want to make headlines, you realize that our schools are soft targets. And we have got to bolster security at our schools.

[snip]

I don’t want my kids to go to school in a place where they feel like you’ve got to have additional security. But that is increasingly the reality we live in.

[snip]

We don’t have to like the reality that we live in. But it is the reality that we live in. We’ve got to deal with it.

Trump, of course, famously told the families grieving after a shooting in Perry, Iowa, “It’s just horrible, so surprising to see it here. But have to get over it, we have to move forward.”

It’s not just that JD’s proposed solution is to box everyone up in aquariums like the Secret Service has done to Trump, but the way in which both men want to pray (or feign prayer, in Trump’s case) and move on.

Compare that to how Trump’s own people are treating his own shooting.

Vance, of course, didn’t blame some “psycho who wanted to make headlines” for Trump’s shooting. Instead, he blamed Joe Biden.

And Trump’s top propagandist, Stephen Miller, won’t shut up about Trump’s shooting.

 

Trump’s people want people to obsess about his own shooting, a month ago, even while minimizing the impact of a shooting that killed four, including two kids. That’s true, even though all the evidence to date suggests that Thomas Crooks shares many similarities with school shooters like accused Georgia shooter Colt Gray, including a fascination with previous school (and in Crooks’ case, presidential) shooters.

Even given all of the Secret Service’s failures, Donald Trump was not a soft target, like schools are. But ultimately he, too, was  vulnerable to an assault rifle in the hands of a disturbed young man hoping for notoriety.

Trump and Stephen Miller and JD Vance don’t want to get over that shooting attempt, and the murder of Corey Comperatore. They need Trump to be more special than all the kids gunned down in their schools. They need Trump’s shooting to have a meaning they won’t ascribe to the murder of children in their classrooms.

And yet Trump is no more special a victim than the teenagers killed in Georgia.

Steve Bannon and Stephen Miller Demand the Right to Foster Right Wing Violence for the Election

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Both Steve Bannon and Stephen Miller have made legal arguments in recent days, claiming not just the right, but the need, to sow right wing violence before the election.

In Bannon’s unsuccessful emergency motion to delay reporting to prison filed June 11, he argued that he needs to stay out of prison so he can “speak out on important issues” in the four months leading up to the Presidential election.

The government seeks to imprison Mr. Bannon for the four-month period leading up to the November election, when millions of Americans look to him for information on important campaign issues. This would also effectively bar Mr. Bannon from serving as a meaningful advisor in the ongoing national campaign.

[snip]

There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.

No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.

After two Democratic appointees denied that bid today (with former Mitch McConnell protégé Justin Walker dissenting), Bannon immediately filed an emergency appeal to SCOTUS. That, too, included Bannon’s wail about the election.

There is also no denying the fact that the government seeks to imprison Mr. Bannon for the four-month period immediately preceding the November presidential election.

Consider what “comment[s] on important matters of policy” Bannon has been making of late: At the Turning Point Conference this week, Bannon incited a room of people by declaring “Victory or Death,” while promising to arrest much of the current DOJ.

Meanwhile “Discount Goebbels” Miller’s outfit asked to submit an amicus brief supporting Trump’s challenge to Jack Smith’s request to prevent Trump from falsely claiming the FBI came to assassinate him in the Mar-a-Lago search.

Miller’s proposed amicus similarly treats the type of speech that Smith wants to limit — false claims that have already inspired a violent attack on the FBI (even before the MAGAt threats against an FBI agent involved in the Hunter Biden case last week) — as speech central to Trump’s campaign for President.

The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.

Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.

Miller calls the false attack on the FBI peaceful political discourse.

Importantly, Miller dodges an argument Smith made — that Trump intended people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignores the exhibit showing Bannon parroting Trump’s false claim.

It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.

But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.

Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.

In courts up and down the East Coast, the two Stevens are making the same argument: That Trump and his team must be permitted to make false, incendiary attacks on rule of law as part of an electoral campaign.

We shall see soon whether SCOTUS chooses to protect those same false claims on rule of law.

Update: Judge Cannon denied Miller’s motion to file an amicus.

Where the Trump Investigations Stand: The January 6 Conspiracies

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As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially. I wrote about the Georgia investigation here and the stolen documents investigation here.

On Thursday, Mike Pence testified to the January 6 grand jury for over five hours. Many commentators have suggested — and I agree — that was one of the last major testimonial steps Jack Smith would need to take before deciding whether and if so how to charge Trump for inciting a mob to threaten to assassinate his Vice President.

But — in addition to Smith’s efforts to obtain recordings from Rudy Giuliani and others that former Fox producer Abby Grossberg has in her possession (which are going to make great evidence at trial) — there are still a few pieces that Smith’s prosecutors seem to be working on.

The most important of those may be continued appellate uncertainty regarding the law that Smith is likely to use to charge Trump and others in conjunction with January 6, obstruction of the vote certification, 18 USC 1512(c)(2), a charge successfully used against dozens of other January 6 defendants already. The DC Circuit will have a hearing on that, in an appeal former Virginia cop Thomas Robertson made of his obstruction conviction, on May 11.

To understand its import, let me explain how I think the various things Smith is investigating fit together. I think it likely that, in addition to some charges relating to the obstruction of this or the January 6 Committee’s investigation, Smith’s team is pursuing:

  • Conspiracy to defraud the United States for submitting fake elector certificates to the Archives (18 USC 371)
  • Obstruction of the vote certification and conspiracy to obstruct (18 USC 1512(c)(2) and (k))
  • Conspiracy to commit wire fraud (18 USC 1343; 1349)
  • Aiding and abetting assault (18 USC 111(b) and 2)

This differs from the January 6 Committee’s referrals in that I’ve included wire fraud, for which they provided abundant evidence, in an appendix, but did not include in their referrals. Also, I believe Smith would charge conspiracy tied to January 6 under 1512(k) rather than 371, as DOJ has been doing for over a year, not least because it provides stiffer sentences and more flexibility at sentencing. And I’ve suggested DOJ might use aiding and abetting of Michael Fanone’s assault based off Amit Mehta’s ruling addressing it and the evidence DOJ used in the Ed Badalian trial. I think that’s more likely than a charge for incitement of insurrection (18 USC 2383) unless DOJ built upwards off of still-hypothetical guilty verdicts in the Proud Boys case, but it might take time. I frankly think adding seditious conspiracy charges would be more likely than incitement of insurrection, if one spent the time to build up the intervening case, but that’s highly unlikely for constitutional reasons.

The way these three main charges — conspiracy to defraud tied to the fake elector certificates, conspiracy to obstruct the vote certification, and wire fraud — intersect likely provide some prosecutorial tools for the same reason that some Georgia Republicans are now turning on other ones.

While the fake electors case may seem like a slam dunk, the criminal exposure it presents is quite uneven.

Part of that stems from the fact that the extent to which a fake certificate was fraudulent is tied to state law about the requirements for elector ascertainment. On December 9, 2020, campaign lawyer Kenneth Cheesebro wrote down (!!) where such efforts would be less and more problematic.

Many of the States contested by the Trump team had laws that specified requirements for electors to validly cast and transmit their votes—and the December 9, 2020, memo recognized that some of these criteria would be difficult, if not impossible, for the fake electors to fulfill. (As described later, most were not fulfilled.) For example, Nevada State law required that the secretary of state preside when Presidential electors meet,16 and Nevada Secretary of State Barbara Cegavske, a Republican, had already signed a certificate ascertaining the Biden/Harris electors as the authorized, winning slate.17 Several States also had rules requiring electors to cast their votes in the State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot were unavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognized that these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

That memo marks the moment when Trump’s official campaign lawyers like Justin Clark and Matt Morgan started to distance themselves from the campaign efforts, to be replaced by Rudy Giuliani and his band of merry warriors.

Something similar happened at the states, as smarter people insulated themselves from this stupid legal move. The fake electors in New Mexico and Pennsylvania included caveats that likely protects them from legal exposure; in other states (notably, Wisconsin) the fake electors credibly believed that the certificates would only be used if a court ruled that there was some remaining legal dispute. Fourteen fake electors refused to participate, several of whom had very useful things to say about its dubious legality even to the January 6 Committee.

While there’s lots of documentary record reflecting that Trump approved the plan, proving his knowledge of the legal problems with the fake certificates themselves would likely require witnesses who saw him do so after having been advised of the legal sketchiness of it all (that may have been among the things the two Pats, Philbin and Cipollone, were asked about in their grand jury testimony in December). To include Trump in these charges, you need witnesses. His call to Brad Raffensberger and his assent to a lawsuit using numbers known to be dodgy are related; his pressure on electors to participate is part of the same conspiracy; but to charge him with the conspiracy itself you need those direct witnesses (in addition to the two Pats, Jason Miller, Rudy, Mark Meadows, Epshteyn, and John Eastman are likely those witnesses).

By last June, the subpoenas DOJ sent out asking for communications with those deeply implicated reflected this differential exposure. So do the phone seizures of Mike Roman and Epshteyn in September, both of whom were key gatekeepers of this process. This post shows how the investigation proceeded from there. In other words, the parts of the fake elector investigation we can see reflect awareness from before the first J6C hearing that the scam implicated differential legal exposure.

That kind of differential exposure is the same thing that Fani Willis is using to secure cooperating witnesses in Georgia.

While I’ll come back to it, the same kind of differential exposure exists with the wire fraud case. Just as one example, while Justin Clark claims to have distanced himself from the obviously illegal fake elector scam, he remained in Trump’s employ as he spent the money earned from making false claims about voter fraud between November and January. He already would have had an incentive to provide evidence to prosecutors that he had no part of the fake electors scheme. His incentive to do so increases to the extent that he benefitted from fraudulent fundraising and spending.

But first I want to explain one thing Smith may be waiting on: A clear sense of how the DC Circuit will define “corrupt purpose” under 18 USC 1512(c)(2).

If he charges it, Smith will likely prove that Trump obstructed the vote certification by:

  • Asking Mike Pence to take action to delay the certification that Trump had been told was illegal (Greg Jacob, Mark Short, the two Pats, and Pence are witnesses to this, all of whom have now made Executive Privilege-waived grand jury appearances)
  • Falsely leading the mob to believe that Pence could take that action (changes Trump made to his speech, about which Stephen Miller was likely asked by the grand jury this month, and his tweets are evidence of this)
  • After Pence refused to take that action, using the mob to try to pressure him to take it anyway or to otherwise disrupt the certification (DOJ has spent two years obtaining evidence that this was, in fact, why many people rioted, with specific evidence tied to Danny Rodriguez)

Contrary to what a million TV lawyers have told you, to prove obstruction, Smith won’t have to prove Trump knew he lost. DOJ has repeatedly won convictions of other January 6 defendants who tried to use that as a defense.

DOJ will need to prove he had corrupt purpose in attempting to obstruct the vote certification. And what that means in the DC Circuit won’t be decided until after May 11.

This post provides both a summary of the debate as it existed in January. This post describes how a DC Circuit panel of Florence Pan, Justin Walker, and Greg Katsas ruled that 1512(c)(2) does apply to the vote certification and that obstruction can extend beyond documentary obstruction. It also explains how none of the three of them could agree on what “corrupt purpose” means, from which some January 6 defendants have tried to argue (unsuccessfully in at least two cases) that Walker’s preferred meaning should apply.

Wildly simplified, the three main definitions of what corrupt purpose might mean are:

  • Corrupt benefit
  • Using otherwise illegal means, which in the case of other January 6 defendants has meant trespass or assault
  • Aiming to obtain an unlawful benefit

On May 11, a DC Circuit panel including Pan, Poppy Bush appointee Karen Henderson, and Obama appointee Cornelia Pillard will consider whether former Virginia cop Thomas Robertson had the corrupt purpose required to be convicted of obstruction. As part of that, they’ll decide whether the earlier ruling decided the issue of what corrupt purpose is, and if not, what it is.

As I wrote, to the extent that Smith has proof Trump knew the fake elector certificates were fraudulent, 1512 should apply to Trump in every imaginable case, far more easily than it does with rioters. The attempted delivery of the fake elector certificates to Pence constitutes a documentary attempt to obstruct the vote certification. Trump’s illegal request to Pence, as well as the knowingly fraudulent lawsuit in Georgia and the effort to pressure Raffensperger, to say nothing of any incitement or aid-and-abet liability in the assaults, are illegal means he used to stop the vote certification. And Trump, more than anyone else involved in efforts to obstruct the vote certification on January 6 was seeking an unlawful personal benefit, the ability to remain in power for another term. Mitch McConnell protégé Walker clearly laid out that basis for that case in his concurring opinion in Fischer.

But former Trump White House counsel Katsas didn’t necessarily view the continued election of Donald Trump to be such an advantage, at least not for those accused of assault before him. He sought a stricter definition of “financial, exculpatory, or professional” gain.

Which brings me (back) to the wire fraud investigation, something that DOJ has been investigating since at least September and in which CNN reported DOJ got cooperators after January 6.

[T]he financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

Wire fraud charges would closely resemble the successful Build the Wall prosecution for which Steve Bannon’s co-conspirators just got four year sentences (he was pardoned in for it in one of Trump’s last pardons but faces trial for the same scam in New York State in November). It would follow a similar wire fraud investigation of Sidney Powell that dates back to before September 2021.

If you think of these three prongs of the investigation, the wire fraud prong serves two purposes. First, many of the people who were witnesses but not subjects of the events leading up to January 6 might be subjects of the wire fraud investigation. As I noted, it may provide a tool to get cooperators.

Just as importantly, even under the most constrained definition of corrupt purpose for obstruction, grifting off false claims of election fraud would qualify.

That is, for Trump, a prosecutor should be able to prove corrupt purpose regardless of any conceivable standard that the DC Circuit or even a conservative SCOTUS would adopt, because he attempted to obstruct the vote certification so that he could remain President after losing the election.

But even if you don’t believe getting Trump elected provides an unlawful benefit to his supporters (or, to put it another way, disqualifying the votes of 81 million other Americans so yours counts more), disseminating false claims about voter fraud to get rich and then cashing in on that Big Lie for years afterwards is a different kind of corrupt purpose, the kind of financial corrupt purpose that Katsas is looking for.

If you riled up tens of thousands of Trump supporters who went on to attack the Capitol just so you could benefit financially, you’ve realized the kind of corrupt financial benefit from the riot that would seem to meet Katsas’ most constrained definition of corrupt purpose.

So it’s not just that the wire fraud part of the investigation is a crime that should, like all the other ways Trump and his flunkies have exploited his credulous followers, be prosecuted. It’s a important complement to the two other conspiracies, both because it’s likely to motivate more cooperators, but also because it helps to prove corrupt purpose for all the people who profited off the fraud.

And that may have an impact on the timing.

As I’ve noted, Trump should qualify under the definition of corrupt purpose no matter what the DC Circuit decides, though some of his flunkies might not. And so on top of whatever continued investigation Smith has to do on the wire fraud prong, he may want to wait until at least after that hearing before he makes final charging decisions.

Lots of people are impatient that neither Trump nor his flunkies have been charged thirty months after their crimes. But the likely charge hasn’t even been defined yet.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

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In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

  • November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
  • November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
  • December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
  • December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.

Trump Is a Mob Boss Whose Omertà Has Started to Fail

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In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.

On Trump, the Anti-Semites, and the Coup Attempt: The Import of Nick Fuentes’ Reference to January 6

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The first thing you should ask when you hear about Trump and the white nationalist is … which one?

After all, it wasn’t that long ago that Stephen Miller waltzed into Kevin McCarthy’s office on the day McCarthy became the presumptive nominee for Speaker of the House. Even if Trump gets the Republican nomination in summer 2024, that’s still twenty months off. But if Miller is driving the Republican House majority’s policy choices in the interim, it will have immediate effect. It will continue an institutional commitment from the Republican Party to policies built to respond to and feed more hate.

Plus, part of the loudest outrage surrounding Trump’s paling around with neo-Nazi Nick Fuentes — from people like Mike Pompeo and Chris Christie — is significantly a desire to undercut Trump in advance of a primary. If you’re opposed to white nationalists in the Republican Party, take on Miller’s central role in the party as a whole and also Trump’s continued ties with fascists.

If you’re a journalist who thinks the Fuentes dinner is newsworthy (it is!), then ask whether Miller’s continued central role in GOP policy is too.

Hell, if you’re a horserace politics reporter, consider writing a story about how damaging Miller’s policies have been for the GOP two midterm elections in a row.

And there’s a bit of the story that’s missing from most tellings of the story.

As Jonathan Swan tells it (with Zachary Basu), in addition to scolding Trump about his increased reliance on teleprompters, Fuentes also delivered the message that parts of the far right are disappointed with Trump, in part, because he has not supported January 6 attackers sufficiently.

Fuentes told Trump that he represented a side of Trump’s base that was disappointed with his newly cautious approach, especially with what some far-right activists view as a lack of support for those charged in the Jan. 6 Capitol attack.

  • Trump didn’t disagree with Fuentes, but said he has advisers who want him to read off teleprompters and be more “presidential.” Notably, Trump referred to himself as a politician, which he has been loathe to do in the past.
  • Fuentes also told Trump that he would crush potential 2024 Republican rivals in a primary, including Florida Gov. Ron DeSantis. Trump asked for Fuentes’ opinion on other candidates as well. [italics mine, bold Axios’]

Not only doesn’t this sound like an unplanned encounter — at least from Fuentes’ side — but it affirmatively sounds like the kind of constituent ask that politicians of all stripes make when they discuss whether to endorse a candidate or not. Fuentes hated Trump’s announcement speech — too canned! — but he also warned that Trump needs to do more to support those being prosecuted for their role in Trump’s coup attempt. In his own livestream about the meeting, after reeling off all the Stop the Steal events Fuentes had been part of organizing, Fuentes said he would back Ron DeSantis over a “moderate Trump.”

Politico’s Meredith McGraw, who was the first to report that Ye and Fuentes were traveling together, also included that comment, and described how Ye’s video about the meeting included both Alex Jones and Roger Stone, as well as Karen Giorno, who attended the meeting and who had a role in a 2016 story just after Stone presented Trump with his notebook of all the calls he had with Trump during the 2016 election.

West went on to say he told Trump, “Why when you had the chance, did you not free the January sixers? And I came to him as someone who loves Trump. And I said, ‘Go and get Corey [Lewandowski] back, go and get these people that the media tried to cancel and told you to step away from.’” The video includes photos of former advisers including Giorno and Roger Stone, and also conspiracy theorist Alex Jones.

Given how much of the rest of the discussion (and the private chat Ye posted afterwards) focuses on Jason Miller, who testified truthfully to the January 6 Committee, this also probably amounted to a request to get rid of Jason Miller, to get rid of Jason Miller in part because he won’t let Trump coddle Nazis and in part because he makes Trump use a teleprompter. This is how those close to Trump have always lobbied Trump on staffing decisions, after all.

The thing is, while virtually all reports of this meeting include the teleprompter comment, most don’t include the January 6 one.

While the NYT (Maggie bylined with Alan Feuer, one of the best journalists on January 6) described Fuentes’ role in pro-Trump mobs leading up to and on January 6, it doesn’t describe that Fuentes claimed about Trump’s insufficient support for those already charged. It also focuses exclusively on the America First arrests, not those with whom Fuentes organized mobs, like Alex Jones and associates.

During the dinner, according to a person briefed on what took place, Mr. Fuentes described himself as part of Mr. Trump’s base of supporters. Mr. Trump remarked that his advisers urge him to read speeches using a teleprompter and don’t like when he ad-libs remarks.

[snip]

Mr. Fuentes, who attended the bloody far-right rally in Charlottesville, Va., in 2017, is best known for running a white nationalist youth organization known as America First, whose adherents call themselves groypers or the Groyper Army. In the wake of Mr. Trump’s defeat in 2020, Mr. Fuentes and the groypers were involved in a series of public events supporting the former president.

At a so-called “Stop the Steal” rally in Washington in November 2020, Mr. Fuentes urged his followers to “storm every state capitol until Jan. 20, 2021, until President Trump is inaugurated for four more years.” The following month, at a similar event, Mr. Fuentes led a crowd in chanting “Destroy the G.O.P.,” and urged people not to vote in the January 2021 Georgia Senate runoff elections.

On Jan. 6, 2021, Mr. Fuentes led a large group of groypers to the Capitol where they rallied outside in support of Mr. Trump. The next day, Mr. Fuentes wrote on Twitter that the assault on the Capitol was “awesome and I’m not going to pretend it wasn’t.”

At least seven people with connections to his America First organization have been charged with federal crimes in connection with the Capitol attack. In January, Mr. Fuentes was issued a subpoena by the House select committee investigating the Jan. 6 attack on the Capitol seeking information about his role in it.

Other outlets, too, focused on the teleprompter comment but not the complaint about January 6 defendants: WaPo (which offers the most detailed account, from attendee Giorno), CNN, WSJ.

CBS described that Ye made a comment about January 6 in his video, just before he flashed images of Stone and Alex Jones.

The complaint that Trump has not done enough for already charged January 6 defendants (or, as Ye complained himself, not pardoned everyone) comes at a rather sensitive time. Of the January 6 defendants likely included in the seven Feuer cites, Christan Secor (holding the America First flag below) was sentenced in October by Trevor McFadden, who normally goes easy on January 6 defendants, to 42 months in prison.

More recently, the FBI arrested a group of 5 American Firsters in September, including former Fuentes deputy Joseph Brody (in the American flag mask and the suit in the picture above). One, Thomas Carey, is set to plead guilty on December 22, which will come with — at least — an interview on the others. And while DOJ portrayed groyper Riley Williams as having been radicalized by watching Nick Fuentes videos rather than in person, she was just jailed pending her February 22 sentencing, and any retrial on the hung charges (obstruction and abetting the theft of Nancy Pelosi’s laptop) might be easier if there was cooperation from others who were present in Pelosi’s office, as Carey may have been. Which is to say that the January 6 investigation into America First is getting closer to Fuentes himself.

But, particularly given Ye’s invocations of Stone and Jones in this context and Stone’s repeated complaints that Trump didn’t pardon him after January 6, those probably aren’t the only January 6 defendants Fuentes meant to invoke. Both Stone and Jones were named repeatedly during the Oath Keeper trial. Both are likely to be named in the upcoming Proud Boy Leaders trial. One Jones employee, Sam Montoya, pled guilty to parading on November 7. His plea agreement lacks the standard cooperation paragraph, which sometimes means that someone had to cooperate in advance to get the plea deal. And Jones’ sidekick, Owen Shroyer, is due to let Judge Tim Kelly know whether he plans on pleading at a status hearing tomorrow.

So the January 6 investigation is getting closer to Stone and Jones too.

Even some in Ye’s entourage have come under investigation, at least in Fani Willis’ investigation, for their role in Trump’s false voter fraud claims.

Trump’s meeting with Fuentes is a big deal. But it likely goes beyond, just, the fact that Trump was sharing Thanksgiving with noted anti-Semites. Both Ye and Fuentes used the meeting to raise Trump’s failures to protect those who helped his last attempt to seize power illegally.

And as Trump’s purported election campaign goes forward, those who participated in Trump’s coup attempt will likely continue to use their own exposure to leverage Trump’s.

Update: The Guardian just reported how Trump refused to criticize Fuentes.

Update: There are two other key America First defendants that have been sentenced, and got off easy. Most notably, Leo Ridge was permitted to plead down from obstruction to 1752, the more serious trespassing charge, after which Trevor McFadden sentenced him to two weeks in jail and a year of probation (meaning his punishment will be done around February).

And Matthew Baggott also pled to 1752, and was sentenced to three months. He’ll have a year of probation after he is released on Christmas eve.

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

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Yesterday, I observed that the FBI gave the former President two different receipts for the search on his golf resort.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

I suggested that one explanation for providing Trump two separate receipts might be if the SSA receipt covered evidence showing Trump violated 18 USC 1519, destruction, alteration, or falsification of records in Federal investigations, and the CLASS receipt covered evidence showing Trump violated 18 USC 793, retaining national defense information under the Espionage Act. I argued the two receipts would cover evidence responsive to crimes that might be charged in different venues, DC for the obstruction charge and SDFL for the Espionage charge.

The third statute on Trump’s warrant, 18 USC 2071, removal of official records would cover everything covered by the Presidential Records Act and would generally backstop everything seized under the other two statutes. It covers both. Consider it an umbrella charge.

Today Trump, in the form of a post on Truth Social and related stories shared to Trump-friendly media, has confirmed I’m right that there’s significance to the two separate receipts.

Trump-friendly outlets have explained that “the former president’s team was informed” that the materials seized via what I’ve called the SSA receipt “contain information covered by attorney-client privilege” but that DOJ “opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.”

The FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.

Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.

[snip]

Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.

I believe there must be some truth to this because if Trump were making completely unsubstantiated claims, he would have made it more generally, claiming that all the boxes must include attorney-client privileged material. Furthermore, Trump’s claims to have watched the search via CCTV notwithstanding, it is highly unlikely Trump has CCTV coverage of his own office, bedroom, and a random storage closet such that he would know what’s in box A-14 (and so on the SSA receipt) versus what’s in box A-15 (which was on the CLASS receipt). Someone who knows the outcome of the search told Trump that one set, but not the other, has materials that are attorney-client privileged. That has to come from the government.

That doesn’t mean my larger hypothesis — that one receipt covered violations of the Espionage Act and the other covered obstruction — has been vindicated. On the contrary, DOJ may simply have chosen to put all records that include an attorney-client claim on a separate receipt so that, if Trump obtains a competent lawyer and demands the Special Master review he’s making a half-hearted request for now, DOJ can move forward with all the other evidence without a 9-month delay like the Special Master review of Rudy Giuliani’s phones necessitated. It would be a clever way of dealing with a very sensitive legal issue.

But I don’t think it’s as simple as that either. Bizarrely, Trump knows something about those boxes such that he’s trying to claim Executive Privilege, in addition to attorney-client privilege.

It’s a nonsense claim, legally. Probably every single box seized last Monday has materials covered by Executive Privilege in them, because every single box would include communications directly with Trump. But there is absolutely no basis for any EP claim for a single thing seized from Mar-a-Lago because the Presidential Records Act underlying the seizure is designed, specifically and especially, to make sure all the EP materials are preserved for history. It’s one of the reasons his refusal to turn over the materials that the Archives were asking for specifically is so insanely stupid, because it gave FBI no choice but to come seize this stuff. Trump’s not making an EP claim to try to delay DOJ’s access to the 27 items, which are mostly boxes, on the CLASS receipt. So he must have learned something about the materials itemized in the SSA receipt to which, in a frantic and transparently silly effort, he’s trying to delay DOJ’s access.

Trump’s announcement that the material on the SSA receipt seems to rule out another possible explanation for the SSA receipt I had been pondering, that it covered the materials that were particularly sensitive from a national security perspective, such as the information on nuclear weapons.

And it doesn’t rule out my hypothesis that that material was seized in the obstruction investigation. Indeed, in two ways, it might corroborate my hypothesis.

There are two theories of the 1519 charge. One, which NYU’s Ryan Goodman is championing, suspects it is about the investigation into Mar-a-Lago, criminalizing the effort in June to withhold materials. If that were the significance of the 1519 charge, separating out the communications between lawyers and NARA and DOJ might make sense, since those would be communications into this investigation. That said, there’d be no basis for an EP claim for any of that, since it all post-dated Trump’s ouster. And as soon as DOJ confirmed that some classified material had been knowingly withheld in June when his lawyers told DOJ that it was all turned over, there’d be a crime-fraud exception for those materials.

My theory of the 1519 charge — that it arose out of NARA’s discovery that Trump had attempted to destroy materials subpoenaed in past and present investigations — would similarly be likely to have attorney-client privileged documents. Take a few examples:

  • One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
  • Another set of things we know were withheld from several investigations were documents showing sustained communications with Russia that should have been turned over by the Trump Organization. The most provable of those were the communications between Michael Cohen and Dmitri Peskov’s office in January 2016 (Mueller got his own copy via Microsoft). There’s probably correspondence regarding an invite Russian Deputy Prime Minister Sergei Prikhodko extended to Trump to attend Putin’s St. Petersburg Economic Forum in June 2016. The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff. The subpoena response on all these issues was handled by Trump’s corporate lawyers, Alan Futerfas and Alan Garten, and so would be privileged — but also crime-fraud excepted — evidence that Trump obstructed various Russian investigations.
  • While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
  • I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.

In other words, aside from the documents Trump tried to rip up or eat or flush, many of Trump’s known violations of 18 USC 1519 would involve lawyers directly. Virtually every investigation into Trump was stymied by improper decisions by lawyers. And those withheld documents would once have been privileged, but they’d also be solid proof of obstruction.

And if Trump had reason to believe that DOJ, after predicating an investigation on all the evidence Trump had tried to rip up or eat or flush evidence, had sought and seized all the attorney-client protected materials that had insulated Trump from consequences for his past actions, it might explain one of the biggest puzzles from the last week. For some reason, Trump has worked far harder to obscure that this obstruction investigation exists than that he’s under investigation for a crime with the word “Espionage” in the title. For some reason, Trump is more afraid of the obstruction investigation than the Espionage Act investigation.

One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

Perhaps the most interesting thing about this latest complaint — first voiced on the 7th day after the search — is it shows that DOJ is in contact with someone presenting themself as Trump’s lawyer.

That’s not surprising. DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

In this case, however, the crimes under investigation include, at a minimum, violations of the Espionage Act. DOJ always tries to find a way to resolve those from the get-go, because prosecutions about stolen classified information are always damaging to the equities you’re trying to protect. That’s all the more true in the unprecedented case where the suspect is the former President. At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

Still, the legal quiet has been making me nervous. I have been waiting all week for a docket to spring up with a Trump motion for a Temporary Restraining Order stalling any access to these files.

For comparison, the docket on a similar challenge from Michael Cohen in 2018 was created just 4 days after the search of his residences, and the discussions about the search began that same day.

On the same day as the seizures (April 9, 2018), the undersigned counsel requested in writing that the U.S. Attorney’s Office for the SDNY return all of the seized property and allow Mr. Cohen and his attorneys the opportunity to screen the materials for privilege, produce any relevant, non-privileged documents to the government, and provide a log of any documents withheld on privilege grounds. Id., ¶ 32, Ex. A. On Wednesday, April 11, 2018, the government responded by letter, rejecting defense counsel’s proposal and informing defense counsel that the government would begin to review the materials at noon on Friday, April 13, 2018. Id. ¶ 33, Ex. B. Accordingly, Mr. Cohen hereby moves for immediate injunctive and equitable relief seeking the opportunity to have his counsel review the seized documents in the first instance, before any review by any law enforcement personnel, for privilege and responsiveness, and, if the Court believes it necessary, for the appointment of a Special Master to supervise that review process.

Trump moved to intervene that same day, April 13, just four days after the seizures.

In the case of the search on Rudy’s phones, SDNY itself asked for a Special Master the next day (though Trump never intervened).

There have to be similar discussions going on now. There just have to be. Trump’s paucity of lawyers — and the conflict posed by the possibility that Evan Corcoran, his most competent current defense attorney, may be conflicted out by dint of having signed an affirmation that Trump turned over all his classified documents in June — cannot explain a full week delay.

But thus far, in spite of every media outlet and their mother filing motions to unseal the search affidavit itself, no one has started pushing to unseal an inevitable fight over access to the seized material. (Again, by comparison, the NYT filed to intervene the day the Cohen warrant docket was made public.)

So for whatever reasons, a full week has elapsed since a lawful search executed on the golf resort of the former President and the first we’re learning about legal discussions — aside from NYT’s revelation that Trump made a veiled threat against Merrick Garland on Thursday — is Trump’s complaint covering just the documents that don’t seem to implicate the Espionage Act.

Something has caused that discussion to remain sealed. And that, by itself, is remarkable.

Update: As klynn reminds in comments, another document that the Trump White House altered was the MemCon of the meeting between Trump and Sergey Lavrov in which he gave the Russians highly sensitive intelligence. I laid out what we know of that alteration, the fall-out, and Mueller’s investigation into it here. If my theory about the SSA receipt is right, that any remaining unaltered record of the meeting found at MAL would be on the SSA receipt. Except the alterations, in this case, are not yet known to involve an attorney, so would not be attorney-client privileged.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

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The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.