Thomas Krause Says Trump Had to Close USAID because of Trump’s Poor COVID Management

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In the last few days, Trump has started doing a better job of messaging with his responses to lawsuits. I’ll attempt to explain that going forward. But one instance is the Thomas Krause declaration filed in the Attorneys General challenge to the DOGE access to Treasury systems (which I also wrote about in this post). Krause — still serving as the hatchet man CEO of Citrix (which probably creates a serious conflict) — uses his declaration to claim that he is attempting to “improve the accuracy of financial reporting.”

I am responsible, among other duties, for reducing and eliminating improper and fraudulent payments; waste, fraud, and abuse; and improving the accuracy of financial reporting. To that end, I am focused on improving the controls, processes, and systems that facilitate payments and enable consolidated financial reporting.

Later in the declaration, he provides a notably different explanation for his job.

My role on the Treasury DOGE Team is to find ways to use technology to make the Treasury Department more effective, more efficient, and more responsive to the policy goals of this Administration.

To justify the focus of DOGE, Krause cites several Biden-era GAO reports.

7. As illustrated by several reports released by the Government Accountability Office (GAO), we have our work cut out for us. On January 16, 2025, GAO released a report entitled “Financial Audit: FY2024 and FY2023 Consolidated Financial Statements of the U.S. Government.” In the report, GAO summarizes that they were not able to determine if the Financial Report of the U.S. Government is fairly presented. Among other reasons, GAO highlighted “problems in accounting for transactions between federal agencies.” GAO found many material weaknesses including “the federal government’s inability to determine the full extent to which improper payments, including fraud, occur and reasonably assure that appropriate actions are taken to reduce them.” GAO also reported that Treasury and Office of Management and Budget (OMB) officials expressed their continuing commitment to addressing the problems this report outlines. In short, the GAO report identifies the Federal government’s inability to account for all of the improper payments including waste, fraud and abuse across federal agencies.

8. On September 10, 2024, the GAO released a report entitled “Payment Integrity: Significant Improvements are Needed to Address Improper Payments and Fraud.” The report found that since 2003, cumulative improper payments1 by executive branch agencies have totaled about $2.7 trillion dollars. Some of GAO’s top concerns [1] included fraudulent or improper Earned Income Tax Credit refunds, Social Security payments, unemployment and Medicare and Medicaid payments. In fiscal year 2023 alone, federal agencies estimated $236 billion in improper payments across more than 70 federal programs. In addition, GAO estimated that the total annual financial losses across the government from fraud are between $233 and $521 billion. These numbers are truly staggering—billions and billions in hardearned American taxpayer dollars are being misspent every year. GAO highlighted a number of steps that Congress and federal agencies could take to help reduce fraud and improper payments, including that “[a]gencies should improve oversight to ensure that funds aren’t paid to ineligible recipients” [2] and that “[a]gencies should improve their collection and use of data for preventing and detecting fraud.” [3]

9. Similarly, GAO has identified areas for improvement in BFS’s systems related to identifying and tracing transactions to determine whether they were complete and properly recorded in the correct general ledger accounts and line items within the Schedules of the General Fund. See GAO Report, “Financial Statement Audit: Bureau of the Fiscal Service’s FY22 Schedules of the General Fund” (March 30, 2023). Specifically, GAO has found inconsistent reporting, lack of traceability, and need for improved controls with the Treasury’s Central Accounting and Reporting System (CARS), which federal agencies use to track their spending for budgetary and accounting purposes. These kinds of improvements and others can enhance BFS’s ability to ensure accountability in the spending of taxpayer dollars.

1 Improper payments and fraudulent payments are related but distinct concepts. An improper payment is a payment that should not have been made, or that was made with an incorrect amount; fraudulent payments occur due to willful misrepresentation. All fraudulent payments are improper, but not all improper payments are fraudulent. [emphasis and links added]

Elon Musk parroted a lot of this language at his presser at the White House yesterday (which is one reason I say they’re beginning to coordinate this better).

If you don’t look too closely, the declaration almost makes DOGE look smart. Except I decided to look at one of the reports — the second one — more closely.

And once I did, I realized that Thomas Krause is, in part, using Trump’s management failures during COVID as an excuse to start shutting down government. Start with the fact that the first agency Krause focused on after arriving at Treasury was USAID — pursuing his goal of making Treasury, “more responsive to the policy goals of this Administration.” But that’s not one of the high risk agencies, all of which have to do with direct payments.

Since 2003, which is when they first tracked the data, the amount of improper payments has steadily increased. But it has declined in recent years, under Biden.

 

There’s a reason for that. Look more closely at the estimated improper payments, their sources, and their timing. 

For longstanding programs — Medicare and Social Security, the ones Krause mentions in his declaration — the number of improper payments in recent years is about what it was under Trump. What has spiked in recent years (and then receded) are programs that expanded under COVID: Expanded Medicaid and unemployment access, and the PPP program rolled out under Trump, something Krause neglects to mention at [1]. A key thing this report measures is COVID mispayments — that is, improper payments made under programs set up under President Donald Trump, 1.0.

The quotes at [2] and [3] are not actually from the report. They’re from this website (which links to this report).

Many of the recommendations and data used in this report pertain to COVID or lessons learned from it. For example, the report recommends making the payment tracking center set up in response to COVID permanent.

Establish a permanent analytics center of excellence to aid the oversight community in identifying improper payments and fraud.28 This could be achieved by building upon and expanding PACE and making it permanent.

And it recommended building in such collection in case of any future emergency response — in part, to avoid the two to three year delay in finding these payments reflected in the table above.

Require OMB to (1) provide guidance for agencies to proactively develop internal control plans that would be ready for use in, or adaptation for, future emergencies or crises and (2) require agencies to report these plans to OMB and Congress.

Amend PIIA. Quickly reporting improper payment estimates for emergency relief programs is critical for agency accountability and transparency over whether appropriated funds were spent for their intended purposes. In addition, estimating improper payments and identifying root causes help ensure that agencies develop and implement corrective actions to reduce them.

In November 2020, we recommended that Congress consider, in any future legislation appropriating COVID-19 relief funds, designating all executive agency programs and activities that made more than $100 million in payments from COVID-19 relief funds as “susceptible to significant improper payments.31 Such a designation would require, among other things, agencies to report improper payment estimates for such a program and develop corrective actions to reduce improper payments. In March 2022, we recommended that Congress amend PIIA to apply this criterion to all new federal programs for their initial years of operation.32 The current approach resulted in 2-to-3 year delays in reporting improper payment estimates for short-term and emergency spending COVID relief programs.

Much of the fraud, too, pertains to COVID relief.

When it is discovered, the Department of Justice (DOJ) can bring charges of fraud against the alleged fraudsters. For example, DOJ has prosecuted over 2,000 COVID-19 fraud-related cases, and hundreds of additional cases are pending. We analyzed the department’s public statements and court documentation and found that, from March 2020 through March 2024, at least 1,998 individuals or entities facing fraud-related charges were found guilty or liable.16 This includes charges in cases involving SBA’s loan programs, DOL’s Unemployment Insurance (UI) programs, and Treasury’s economic impact payments. Of the individuals found guilty, at least 1,596 had been sentenced as of March 31, 2024, and many have also been ordered to pay restitution and fines. There were also federal fraud-related charges pending against at least 632 other individuals or entities involving federal COVID-19 relief programs, as of March 31, 2024.17 We expect the number to continue to increase as investigations take time to develop and given the significant number of investigative leads. For instance, SBA’s IG office reported that its actionable leads represent more than 100 years of investigative case work.18 The government has 10 years to prosecute individuals who committed fraud related to the Paycheck Protection Program (PPP) and the COVID-19 Economic Injury Disaster Loan (EIDL) program.19 DOL’s IG has requested Congress similarly extend the statute of limitations for the pandemic relief UI programs as well.20 Additionally, in a June 2024 press release, the Internal Revenue Service requested to Congress that the statute of limitations for fraud be extended for the Employee Retention Credit.21 We support their requests.

Now, to be fair, there was likely to be overpayments and fraud regardless of who was in charge when COVID hit (or when avian flu and measles become pandemics in months ahead).

This is not all attributable to Trump’s COVID failures.

But one other thing about this report deserves mention: It is full of discussion of the role of Inspectors General in finding this fraud, including a bunch of the people Trump fired four days into his term — six of whom just filed suit today (which I’ll turn to shortly). Indeed, one of them — Mike Ware — is cited in the report Krause invoked.

18 Stolen Taxpayer Funds: Reviewing the SBA and OIG Reports of Fraud in Pandemic Lending Programs Hearing Before the House Committee on Small Business, 118th Cong. 45 (2023) (statement of Hannibal “Mike” Ware, Inspector General of U.S. Small Business Administration).

Thomas Krause says we need to fix the errors created by Trump’s poor management of COVID. But one of the first things Trump in his second term did was to fire the people who’ve done the most to do so.

Update: Corrected Mike Ware’s last name.

Update: I’ve linked Ware’s testimony, above. Among other things, he estimated that SBC IG identified up to $200 billion in fraudulent COVID relief.

Using OIG’s investigative casework, prior OIG reporting, advanced data analytics, and additional review procedures, we estimate SBA disbursed more than $200 billion in potentially fraudulent COVID-19 EIDLs and PPP loans. This estimate represents approximately 17 percent of disbursed COVID-19 EIDLs and PPP funds — specifically, more than $136 billion COVID-19 EIDLs and $64 billion in PPP funds. Since SBA did not have an established strong internal control environment for approving and disbursing program funds, there was an insufficient barrier against fraudsters accessing funds that should have been available for eligible business owners adversely affected by the pandemic.

In other words, a huge chunk of the fraud Krause says he is looking for was IDed by one of the guys Trump fired on day four.

Two Days In, Pam Bondi’s DOJ Is Already an Ethical Swamp

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Reuters was the first to track the travails of Ed Martin, the Jan6 riot attendee turned US Attorney for DC who moved to dismiss the prosecution of one of his clients on January 21, and only two weeks later, on February 4, moved to withdraw from the case.

On January 6, 2021, Martin posted on X, then called Twitter, that he was at the Capitol himself, describing the day as “Like Mardi Gras in DC today: love, faith and joy.”

Before becoming Washington’s top prosecutor, he appeared as an attorney for three people convicted of participating in the riot, according to court records. Two of those cases ended before Trump took office; the third, against Joseph Padilla, was still ongoing on January 21 when Martin’s office filed a motion bearing his name asking a court to drop the charges.

State rules in Missouri, where Martin is licensed, bar government lawyers from handling cases involving their clients without written consent.

A spokesperson for the U.S. Attorney’s office did not immediately respond to a request for comment. A private spokesperson for Martin said he is in complete compliance with the requirements for his position.

On Wednesday, Martin sent an office-wide email seen by Reuters in which he said he had “stopped all involvement” in the cases more than a year and a half ago, that he had handled them pro bono, and said he was “under the impression that I was off the cases.”

He said the U.S. Attorney’s career ethics lawyer asked him about the cases last week and complained that it “immediately leaked to the media.” This leak, he said, was both “personally insulting” and professionally “unacceptable.”

When Martin did finally move to drop off the case he had gotten dismissed weeks earlier, he offered the kind of dumb excuse you expect from a Trump flunkie.

Undersigned counsel respectfully moves the Court to withdraw as a counsel of record in this matter.

Mr. Padilla noticed his appeal in this case in September 2023. ECF No. 108. From that point forward, he was represented by an attorney working with the Office of the Federal Public Defender in New Mexico. That defender entered her appearance in this case on November 1, 2024. ECF No. 122. Although undersigned counsel has not represented Mr. Padilla in connection with postconviction litigation, counsel remains listed as counsel of record on the docket. Accordingly, as the case has now been dismissed, and as the undersigned does not currently represent Mr. Padilla, counsel requests that the Court grant this motion so the docket may accurately reflect this fact. This motion has been served upon the defendant personally. LCrR 44.5(d). Mr. Padilla has no objection to this motion.

It turns out the DC Bar membership for the Acting US Attorney for DC lapsed. His Bar membership is not in good standing.

Case Name: USA v. PADILLA
Case Number: 1:21-cr-00214-JDB

Filer:
Document Number: No document attached
Docket Text:

NOTICE of Provisional/Government Not Certified Status re [126] Proposed MOTION to Withdraw as Attorney Edward Martin by Edward Martin. by JOSEPH LINO PADILLA. (Martin, Edward).

Your attorney renewal/government certification has not been received. As a result, your membership with the U.S. District & Bankruptcy Courts for the District of Columbia is not in good standing, and you are not permitted to file. Pursuant to Local Criminal Rule 57.21.1, you must immediately correct your membership status by following the appropriate instructions on this page of our website: https://www.dcd.uscourts.gov/attorney-renewal.

Please be advised that the presiding judge in this case has been notified that you are currently not in good standing to file in this court. Renewal Due by 2/12/2025. (zhcn)

It further turns out that when Martin wrote a very angry letter to Judge Amit Mehta telling him the Oath Keeper seditionists whose sentences Trump commuted, but did not pardon, should have no release conditions, he signed that letter over his DC Bar Membership, which we’ve now learned was not in good standing a few weeks later.

It’s a big mess. The activist group that has gotten some of Trump’s other January 6 lawyers sanctioned is trying to make it a bigger mess, at least in Missouri, which specifically prohibits playing both sides of a legal issue.

Activist legal group the 65 Project filed a bar complaint on Thursday against Edward Martin, interim U.S. Attorney for the District of Columbia, in Missouri, where he is licensed to practice law, a day after Reuters reported the potential conflict.

Martin last month asked a judge to drop charges against a man who took part in the January 6, 2021, Capitol assault whom he also represented as a defense attorney, after Trump on his first day in office granted clemency to all the nearly 1,600 people charged with playing a role in the riot.

Lawyers generally are prohibited from taking both sides in the same case and U.S. Justice Department regulations require lawyers to step aside from cases involving their former clients for at least a year.

State rules in Missouri, where Martin is licensed, also bar government lawyers from handling cases involving their clients without written consent.

“When President Trump appointed Mr. Martin to serve as interim U.S. Attorney for the District of Columbia, Mr. Martin became duty-bound under the rules of professional conduct to abstain from any role in his former clients’ criminal cases,” said Michael Teter, managing director of the 65 Project, which has brought bar complaints against Trump-affiliated lawyers, in a statement.

The complaint also notes that Martin filed the motion to dismiss for Timothy Hale-Cusanelli, after doing fundraisers for the Hitler cosplayer.

In addition, Rule 4-1.7 also prohibited Mr. Martin from appearing on behalf of his client, the United States, in Mr. Hale-Cusanelli’s criminal matter after he held a fundraiser for Mr. Hale-Cusanelli and spoke glowingly of the convicted felon.

Still, two days into Pam Bondi’s tenure as AG, things are only getting started. Consider this paragraph of Bondi’s memo entitled, “RESTORING THE INTEGRITY AND CREDIBILITY OF THE DEPARTMENT OF JUSTICE,” which attempts to comply with Trump’s Executive Order purporting that DOJ has been weaponized. (See this Lawfare post for links and analysis of all of Bondi’s memos.)

I hereby establish the Weaponization Working Group, which will be led by the Office of the Attorney General and supported by the Office of the Deputy Attorney General, the Office of Legal Policy, the Civil Rights Division, the U.S. Attorney’s Office for the District of Columbia, and other personnel as necessary to achieve the objectives set forth herein. The Weaponization Working Group will conduct a review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States over the last four years, in consultation with the heads of such departments and agencies and consistent with applicable law, to identify instances where a department’s or agency’s conduct appears to have been designed to achieve political objectives or other improper aims rather than pursuing justice or legitimate governmental objectives. The Department of Justice will provide quarterly reports to the White House regarding the progress of the review.

It puts the following people in charge of reviewing whether investigations into Donald Trump were weaponized:

  • Bondi’s own office, barely three months after she signed an amicus in the appeal of his documents case and who also perpetuated some of Trump’s false voter fraud claims
  • The Office of Deputy Attorney General, currently run by Trump’s defense attorney Emil Bove, soon to be run by Trump’s defense attorney Todd Blanche
  • Office of Legal Policy, which will be led by Ken Paxton’s former deputy
  • Civil Rights Division, to which Trump has nominated Harmeet Dillon, who worked for Trump’s campaign in both 2020 and 2024; she also represented the RNC in a Voting Rights lawsuit filed by a Michigan Civil Rights Group
  • The DC US Attorney’s Office, run by Martin, who’s already struggling to contain his conflicts (and who was almost certainly among the 1,000 or so people investigated,  but not charged, for January 6)

Literally every one of the people overseeing this review has a major conflict. If they were ever to file criminal or civil charges against a competent judge, it’d be laughed out of court for all the conflicts. Plus, Bove and Blanche have already made claims about these investigations that have been rejected by judges.

Remember, Bondi promised to consult with career attorneys about such conflicts — but they’ve already reassigned the senior most of them, Brad Weinsheimer.

And this is what Bondi does in a memo claiming to “restore the integrity and credibility of DOJ.”

Amy Berman Jackson: “Michael Fanone’s heroism will never be moot”

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Yesterday, Judge Amy Berman Jackson dismissed Danny Rodriguez’ case (which was still live based on his appeal of his sentence) as moot, per instructions from the DC Circuit.

But she used the opportunity to reiterate a number of things from the court record.

In accordance with these instructions, the Court will dismiss this case as moot.

In the interest of completeness, in fairness to the victim of this brutal offense, and in furtherance of the truth, the Court also states the following.

First, she reminded that Danny Rodriguez pled guilty to tasing Michael Fanone, which nearly killed him.

On February 14, 2023, defendant Daniel Joseph Rodriguez pled guilty to four of the crimes with which he had been charged in the superseding indictment in this case. He was represented by a highly experienced team from a Federal Public Defender’s office. When Rodriguez entered his plea, he swore that the Statement of Offense the parties had jointly submitted to the Court was truthful, including the paragraph in which he admitted, “knowingly and voluntarily,” that he “forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with Officer Michael Fanone,” and that he knew at the time of the assault “that the officer was engaged in the performance of their official duties,” or was assaulted “on account of their performance of their official duties.” Statement of Offense [Dkt. # 160] ¶ 20. See also id. ¶ 15 (“The defendant applied the electroshock weapon to the back of Officer Fanone’s neck.”). Thus, there was no trial and no jury involved in the finding that he was guilty.

She included excerpts from Rodriguez’ apology to Fanone.

My name is Daniel Joseph Rodriguez and I write this in hopes that you accept my apology. I do not write this as an excuse for my actions on January 6th, I am not writing this to the Judge, prosecution or media. I am looking at serving a long prison sentence and no letter I write is getting me out of that. Sir, I only want to apologize from the heart.

* * *

Let me start by telling you I’ve been in jail doing lots of thinking, finding God and changing. I never should have been in Washington, D.C. I came from the Los Angeles area of California and I had no business at the Capitol. . . . I should have protected you because I have deep respect for law enforcement, and I have always stood up for police officers. You are a brave man and I wish for good things for you in the future. I want to apologize to your children as well. If I could go back and change what I did, I would.

She described how, as Officer Fanone was protecting members of congress, Rodriguez took the opportunity of his capture to tase him, repeatedly.

The ragged, exhausted, outnumbered line of Capitol Police officers, with Metropolitan Police officers slowly arriving to reinforce them, is trying to keep the mob from gaining access to the inside of the Capitol through the double doors at the end of the tunnel.

Members of Congress and their staff were huddling in fear for their lives nearby. They can hear the chants. They can hear the struggle. The mob turns every possible object into a weapon.

[snip]

Officer Fanone is still thinking about how he can help: Let’s get some fresh guys up front. Let the people who are hurt move back to get assistance. He moves forward, towards the mouth of the tunnel. And another member of the mob, Albuquerque Head, takes it upon himself to put his arm around Fanone’s neck, claiming he’s there to help him. “Hey, I’m going to try to help you out of here. You hear me?” And Officer Fanone actually says, “Thank you.”

But then Mr. Head drags him down the steps and into the crowd, shouting “Hey, I’ve got one.” You can see many other protestors reacting in horror, backing away, yelling, “No,” waving, signaling with their arms to stop. But not you. Who answers Mr. Head’s call? You. You move towards the officer who is being restrained. You are then pressing the electric weapon against side of his neck below his ear. And you can hear him, because we hear it on the video, screaming in pain. He tries to pull back. He tries to get away. But you weren’t done.

You placed the weapon again at the back of his neck and begin pressing again, and the officer screams again.

And ABJ compares what Fanone said after he was revived with what Rodriguez said.

With the help of some other protestors still equipped with their own humanity, Officer Fanone manages to make his way back to the mouth of the tunnel where he collapses. He was unconscious. Sergeant Mastony had to drag him back inside. It takes about two and a half minutes to revive him. And the first thing he says when he comes to is, “Did we take back the door?”

[snip]

What does the defendant do next? While Officer Fanone is undergoing emergency treatment for potential damage to his heart, the defendant is crowing about his exploits. That afternoon, while still on the Capitol grounds, he messages the others, “Oh, my God. I did so much fucking shit and got away.” And then he says, “I tased the fuck out of the blue.”

[snip]

Some people have tried to vilify Officer Fanone, including in my courtroom, but he did nothing that day but show up to support the Capitol Police who were fighting against impossible odds, and he put his life on the line to protect the men and women of the United States Congress, the United States Capitol building, and democracy itself, against a mob. His courage and bravery were met with an assault that almost took his life, and left him unable to perform his job again. Yet his character was revealed when he came to and all he could say was, “Did we hold the line?” Meanwhile, you chose to sum yourself up with an immature, sickening boast.

And so, in dismissing the case as moot, Amy Berman Jackson reiterated the justice of the sentences against Fanone’s attackers.

Michael Fanone’s heroism will never be moot. And no proclamation or order vacating a conviction can erase the truth: that all of the individuals charged with attacking him on January 6 came into court and voluntarily swore that they were guilty, and justice was served.

Justice was served with the sentence, ABJ asserted while debunking the very premise of the pardon Trump issued.

Michael Fanone’s heroism will never be moot.

This is the reality that Republicans in Congress — the very members whom Fanone nearly died protecting — Attorney General Pam Bondi, and their boss, are all trying to rewrite.

Republicans Continue to Cover Up Why Kash Patel Pled the Fifth

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

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

But it’s clear Chuck Grassley is.

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

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

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

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

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

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

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

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

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

Telling the Story of January 6 to the Judges Who Know It Best: The Two FBI Lawsuits

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There are a number of outlets tracking every legal challenge to Trump and Elon Musk’s power grabs. For example, JustSecurity has this litigation tracker, including the multiple suits (one, two, three, four, five, six, seven) that attempt to stop Elon’s invasion. Some may well succeed in enjoining Elon’s actions — but they’ll lead to a confrontation over who will enforce the orders.

Two lawsuits filed yesterday by FBI agents may be better vehicles both legally and in generating stories that might lead to pushback from Republicans. The first represents nine Jane and John Doe FBI personnel, fashions itself as a class action, and demands a jury trial; it has been assigned to Biden appointee Jia Cobb. It makes claims under the First Amendment, Fifth Amendment (and Fifth Amendment Privacy), and Privacy Act. It provides these details about how much the government spends to obtain the expertise of FBI agents.

13. FBI agents are chosen through a highly selective process, and are carefully screened for aptitude and trustworthiness.

14. FBI agents go through more than four months of intensive training at the FBI academy before beginning their duties, and attend numerous training sessions throughout their careers to adapt to new technologies and emerging threats.

15. Many FBI agents are multi-lingual and routinely interface with intelligence agencies from allied nations.

16. The training FBI agents receive is comprehensive, and in some instances, extremely expensive.

17. On information and belief, Plaintiffs assert that each agent of the FBI receives more than 3 million dollars-worth of training in a twenty (20) year career.

18. FBI agents also develop specific expertise from their assignments and field duties, much of which cannot be replicated solely by training.

The second represents seven Jane and John Doe FBI personnel, and the FBI Agent’s Association, which represents most active duty Agents; it has been assigned to the Trump appointee who presided over the Proud Boy leaders’ trial, Tim Kelly. Mark Zaid, a highly experienced lawyer in this field, is leading this suit. [Update: This case has been reassigned to Judge Cobb.]

This FBIAA suit makes two claims under the Privacy Act, a First Amendment, two Due Process claims, and this mandamus claim.

64. The provisions of 28 U.S.C. § 1361 provide a statutory basis for jurisdiction in cases seeking relief in the nature of mandamus against federal officers, employees, and agencies, and they provide for an independent cause of action in the absence of any other available remedies.

65. Defendants’ actions, as set forth above, constitute unlawful, intimidating, and threatening behavior towards Plaintiffs in response to Plaintiffs’ lawful actions of executing lawful search and arrest warrants and participating in lawful investigations of crimes committed by January 6 perpetrators.

66. Defendants do not have discretion to redefine the truth of January 6, 2021. Nor do Defendants have any discretion to recast the lawful actions taken by the FBI and the previous leaders within the Department of Justice as illegal, let alone any discretion to retaliate and disclose names.

67. Defendants have no discretion when it comes to ensuring the safety of the American people from extremist violence, let alone the safety of their own employees.

68. If no other remedy is available through which the unlawful termination orders may be rescinded, then Plaintiffs are entitled to relief in the nature of mandamus compelling Defendants to recognize Plaintiff to rescind the unlawful termination orders.

Both tell stories about Trump’s personal involvement in January 6 and describe a fear that lists of FBI Agents who worked on the January 6 cases will be used by those they investigated for retribution. The second also cites multiple cases of Jan6ers — including Enrique Tarrio, over whose prosecution Judge Kelly presided — promising retribution. [Update: As noted, this case has been reassigned to Judge Cobb.]

The second suit — the FBIAA one — substantiates its description of the events of January 6 far better, relying on opinions written by the judges who’ll preside over this case, as in these two citations to the DC Circuit opinion in the January 6 Committee’s lawsuit to access Archives documents.

13. The events of January 6, 2021, and the activities leading up to the violence that ensued on the U.S. Capitol on that day, have been well documented by courts in this circuit. Specifically, “[o]n January 6, 2021, a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States. The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol. Then-Vice President Pence, Senators, and Representatives were all forced to halt their constitutional duties and flee the House and Senate chambers for safety.” Trump v. Thompson, 20 F.4th 10, at 15-16 (D.C. Cir. 2021).

[snip]

19. “The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives. Approximately 140 law enforcement officers were injured, and one officer who had been attacked died the next day. In the aftermath, workers labored to sweep up broken glass, wipe away blood, and clean feces off the walls. Portions of the building’s historic architecture were damaged or destroyed.” Thompson, 20 F.4th at 19.

That’s not the only way the FBIAA suit foregrounds the way judges have approved of the January 6 investigation. It also describes how everything happened with the involvement of judges and much of the legal process for that went through DC.

21. Investigative efforts were centralized out of the District of Columbia federal district (“DDC”). Functionally, this meant that FBI agents swore out arrest warrant affidavits in front of DDC magistrate judges. Upon receipt and review of the sworn affidavit, DDC magistrate judges approved the FBI’s arrest warrant applications and provided a signed, lawful arrest warrant to the arresting FBI agent or FBI task force officer (local law enforcement detailed to the FBI) for execution.

22. In some instances, individuals were arrested pursuant to a grand jury indictment. In these cases, FBI agents testified in front of a federal grand jury under Fed. R. Crim P. 6. If the grand jury found probable cause based on the evidence presented, a supervising court would then issue a lawful arrest warrant for execution

23. Many of the perpetrators of the January 6 riots fled Washington, D.C., immediately after the carnage. Because of this, the FBI had to coordinate efforts across the country in order to amass evidence. This frequently entailed applying for search warrants under Fed. R. Crim. P. 41 in the district where the evidence was to be located. Again, the FBI applied for warrants via sworn affidavits presented to neutral and detached magistrate judges. In the context of search warrants for physical property (e.g., phones, clothes, stolen property), these lawful warrants were issued by a multitude of magistrate judges outside of DDC.

Every DC Judge has affirmed the import of these cases and the danger of the January 6 attack (though some have questioned the prosecution of so many trespassers). They’re all likely facing the same threats that these FBI agents are.

And they are being asked to preside over suits that pit the FBI agents who carried out this investigation against a DOJ led by Trump’s defense attorneys (including Pam Bondi, who was confirmed with the help of John Fetterman but no other Democrats yesterday).

The Mandamus requested by the FBIAA suit is a big ask — the Privacy Act violations in both suits are more likely to work. But the judges in question are likely to agree that, “Defendants do not have discretion to redefine the truth of January 6, 2021.”

According to Ken Dilanian, the FBI did turn over a list of the people involved in the January 6 investigation, though provided employee ID numbers in lieu of names.

Trump Preparing to Fire FBI Agents Who Treated a Violent Attack on Congress as a Crime

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Emil Bove, the Trump defense attorney who is serving as the Acting Deputy Attorney General until Trump installs another of his defense attorneys in the post, is preparing to purge up to 6,000 FBI Agents who participated in the investigation into the crime scene on January 6.

Bulwark has a good summary and links to other coverage.

Emil Bove, Trump’s former defense lawyer, who is now acting deputy attorney general and in charge of the Justice Department, ordered the removal of at least six top FBI career executives. Bove also requested the names of all FBI agents who worked on January 6th cases.

[snip]

Over the weekend, in a blizzard of activity (helpful reporting can be found here, and here, and here), FBI officials moved to resist the attempted coup.

Though he had carried out the order to decapitate the bureau’s top executives the day before, on Friday acting FBI Director Brian Driscoll reportedly refused to agree to fire certain agents involved with January 6th cases, and was trying to block a mass purge of such agents. In a message to staff Saturday, Driscoll reminded FBI agents of their rights to “due process and review in accordance with existing policy and law,” and emphasized “That process and our intent to follow it have not changed.”

The FBI Agents Association sent a memo to employees over the weekend to remind them of their civil service protections. The memo urged them not to resign or to offer to resign, and recommended that agents respond to one question in the survey they’ve been instructed to answer: “I have been told I am ‘required to respond’ to this survey, without being afforded appropriate time to research my answers, speak with others, speak with counsel or other representation.”

And in a remarkable letter, obtained by The Bulwark, the president of the Society of Former FBI Agents—a group that seeks to stay out of politics—said the following:

The obvious disruption to FBI operations cannot be overstated with the forced retirement of the Director, Deputy Director, and now all five Executive Assistant Directors. Add in the immediate removal of a number of SACs [Special Agents in Charge] and the requests for lists of investigative personnel assigned to specific investigations and you know from your experience that extreme disruption is occurring to the FBI—at a time when the terrorist threat around the world has never been greater.

Then on Sunday the top agent at the FBI’s New York field office, James Dennehy, wrote in an email to his staff: “Today, we find ourselves in the middle of a battle of our own, as good people are being walked out of the F.B.I. and others are being targeted because they did their jobs in accordance with the law and F.B.I. policy. . . . Time for me to dig in.”

What no one is saying in their coverage, however, is that Trump — through Bove — is effectively trying to remove thousands of FBI Agents because they treated a violent attack on the Capitol, one that put Members of Congress at real risk (as the video of Chuck Grassley fleeing, which Kyle Cheney first discovered, shows).

This mob wasn’t just coming after Mike Pence and Nancy Pelosi (and AOC) by name. They were also coming after Mitch McConnell by name. As I’ve shown, Ryan Nichols was calling to drag every member of Congress who certified Joe Biden’s win, which includes Grassley, Lindsey Graham, and John Cornyn.

Trump is trying to make it a firing offense for the FBI to investigate people — including some adjudged terrorists — who attacked a co-equal branch of government.

And thus far, Senators who could stop it have done nothing.

Purging these agents will not just devastate the FBI workforce, throwing away decades of expertise. But it will also send a message that Trump can sic a mob on Congress with no response from law enforcement.

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

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

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

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

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

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

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

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

Probing his role in disseminating the January 6 choir

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kash disclaims the purge in process

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

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

Compile this video

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

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

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

Mark Zuckerberg Agrees to Turn Meta [Back] into a Pogrom Machine

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According to WSJ, Meta has agreed to pay $25 million to lose the frivolous lawsuit Trump launched after Facebook exercised its prerogative under the First Amendment not to platform Trump’s insurrection anymore in 2021.

Meta Platforms has agreed to pay roughly $25 million to settle a 2021 lawsuit that President Trump brought against the company and its CEO after the social-media platform suspended his accounts following the attack on the U.S. Capitol that year, according to people familiar with the agreement.

Of that, $22 million will go toward a fund for Trump’s presidential library, with the rest going to legal fees and the other plaintiffs who signed on to the case. Meta won’t admit wrongdoing, the people said. Trump signed the settlement agreement Wednesday in the Oval Office.

A Meta spokesman confirmed the settlement.

[snip]

Trump’s Facebook and Instagram accounts were suspended in 2021 because of posts he made around Jan. 6, 2021, when a mob stormed the Capitol building. In the days leading up to the attack and on Jan. 6, he repeatedly used the platforms to make false claims that he won the 2020 election and alleged widespread election fraud that was denied by the administration’s top election-security experts and attorneys.

Zuckerberg, at the time, said the risks of the president’s using the social-media platforms during that period “are simply too great” and then paused the president’s accounts for two weeks. The pause was subsequently lengthened.

Most people — including Elizabeth Warren, in the WSJ story — are focusing on how this is effectively a bribe, a $22 million donation (on top of the earlier $1 million one) trading for regulatory favors. It is. Trump continues to engage in unprecedented corruption in plain sight.

But it is more than that. The concession of the settlement implies that Facebook should not have banned Trump for using their platform to incite an insurrection, though it admits no wrong-doing.

I have repeatedly argued that if Twitter, along with Facebook, had not shut down Trump’s account after January 6, there was a good chance that Joe Biden would never have been inaugurated.

Mark Zuckerberg’s capitulation makes it far less likely Meta will do the same thing — take action against Trump’s account to prevent him from stoking ongoing violence — again. It makes it virtually certain that Meta will not police inciteful content involving Trump without buy-in from the top, from Zuck.

And that, along with Meta’s earlier capitulations to Stephen Miller to rejigger its algorithms to allow transphobic and other dehumanizing speech — which experts predicted would lead to the kind of violence Facebook fostered in Myanmar — means that when Trump next uses these platforms to incite violence, he’s far less likely to be shut down.

Heck, John Roberts has even provided guidelines to Trump on how to ensure such incitement will be an official act and therefore immune from any future prosecution. Trump simply needs to involve his top aides — someone like Stephen Miller — in crafting a post, and Trump will be able to say that John Roberts told him that Trump never goes to prison for it.

Stephen Miller has, for some time, been laser focused on re-weaponizing social media. He is suspected to be the one who pitched Musk on bringing “the boss himself, if you’re up for that!” back onto Xitter.

Then, last summer, Miller attempted to intervene in Trump’s document case when Jack Smith asked Aileen Cannon to prevent Trump from falsely claiming the FBI tried to assassinate him because it issued routine use of force guidelines for the search of Mar-a-Lago. Miller argued that Trump’s false claims on social media about the FBI — earlier ones of which had already led to a violent attack on the FBI — were not incitement and constituted important speech for the election.

The only possible constitutional exception to free speech the government has identified is incitement. But it cannot rely on that exception to justify infringing President Trump’s rights. President Trump has not engaged in speech that “prepare[s] a group for violent action [or] steel[s] it to such action.” Brandenburg, 395 U.S. at 448. 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. The government presents no evidence that President Trump advocated a violent attack or other lawless action against the Department of Justice, the FBI, President Biden, this Court, any witness, or any other person. Much less has the government proved a call to arms or any request, demand, instruction, or implication that supporters should violate any law.

And all this is happening after Trump pulled the security detail from several people — most notably Anthony Fauci and Mark Milley — who’ve long been targeted, the latter by Iranian terrorists as well as Trump’s people. Indeed, one of the attacks Smith focused on in his successful DC bid for a gag was Trump’s attack suggesting Milley should be executed.

This is not just about eliciting a bribe for regulatory favors. It is not just about winning an argument about actions taken four years ago to halt an insurrection in process.

The entire lawsuit is about an ongoing chilling effect. And Zuck’s capitulation is a capitulation to that chill, a soft commitment that the next time Trump uses social media to launch his mob against vulnerable targets like trans people or legal Haitian immigrants, against co-equal branches of government in Congress or the courts, or against his select targets like Milley, Meta will do nothing to slow the mob.

For years, Stephen Miller has been perfecting the use of social media to sow fascism. And he just cowed one of the richest men in the world to make it a more effective tool for fascism.

A Summary of Kash Patel’s Disqualifications to Lead FBI

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I expect Kash Patel will be confirmed; I even expect that Democrats on the Senate Judiciary Committee will be utterly feckless in Kash’s confirmation hearing tomorrow.

Nevertheless I wanted to summarize his disqualifications.

Kash got where he is by substituting the Steele dossier for the real Russian investigation, which was instrumental in Trump’s success at minimizing the damage of one after another Trump associate lying about what really happened in 2016.

Kash gets a lot of credit for the Nunes Memo, with many right wingers claiming that the Horowitz Report vindicated it.

It didn’t. As I showed, both the Nunes Memo and the Schiff Memo got things right and got things wrong; mostly they just spoke past each other, which was fundamentally based on that substitution of the Steele dossier for the real Russian investigation.

Nevertheless, one of Kash’s lasting gripes (against Robert Hur) has to do with efforts to limit how much Kash was releasing at the time.

Kash did more than that as a House staffer, though. He continued to chase his conspiracy theories as Congress turned to criminalizing Hillary Clinton. He’s actually the staffer who asked the question that set up Michael Sussmann for a failed prosecution years later. He set up what would later become the Durham investigation — a four year effort to criminalize being victimized by a hostile nation-state.

And then, after Durham filed a wildly misleading court filing misrepresenting the discovery by some Georgia Tech researchers that someone was using a YotaPhone inside the Executive Office of the Presidency during the Obama term, Kash sent out a letter outright lying about the claims.

The whole thing is riddled with lies, but ultimately it amounts to a conflation of the Obama-era discovery with the discovery of the ties between a marketing server, Alfa Bank, and a Spectrum Health server. Kash’s letter was the final step before Trump jumped on the lies and called for Sussmann’s execution. Kash is a key cog in the way Trump has elicited threats against others.

Kash also paid a lot of former FBI agents who were disgruntled about having to investigate Trump supporters.

And when news of the discovery that boxes of documents that Trump had returned had classified documents in them, Kash invented a claim that Trump had declassified all those documents.

At least one Jack Smith witness — someone with the potty mouth of Eric Herschmann — disputes any claim there was a standing order to declassify documents. That witness described someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.

Jack Smith described what happened next. When investigators subpoenaed Kash to test his claims that Trump had this standing order, Kash tried to delay compliance indefinitely by hiring a lawyer already busy defending a January 6 seditionist. When the aspiring FBI Director did first testify, Kash pled the Fifth repeatedly.

On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.

On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).

Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]

Aileen Cannon has buried any description of what Kash said when compelled to testify. This nomination should be held until any discussion of Patel in the Jack Smith report is released (but thus far Dick Durbin has shown no interest in doing so; DOJ just dropped their appeal).

But it should never be passed, because Kash is a menace. In his repeated efforts to falsely claim that January 6 defendants were treated any worse than any other mostly-violent pretrial detainees during the COVID period, he suggested that the people detained for assaulting cops were being mistreated.

As I have shown (and Bulwark did before me) Kash’s cheerleading for January 6 defendants amounts to arguing that someone accused of assaulting cops who grabs a gun when his probation officers show up should not then be jailed, nor should someone who directly threatened members of Congress, called on a mob to grab their weapons, and then assaulted cops.

Kash Patel will do and say anything to protect Trump and his flunkies — up to and including risking the safety of members of Congress.

Such a person would not serve as Director of FBI. He would serve as a means to turn government against Trump’s adversaries.