2020 Presidential Election Archives - Page 2 of 151

Every DOJ Beat Journalist Fails to Mention a Dozen Judges Approved of 1512 Charge for January 6

WSJ didn’t mention it. (Update: they now have.)

WaPo didn’t mention it (though it did break the news that Ed Martin says he’ll be appointed DC USAO). (Update: They’ve now added it.)

NBC didn’t mention it in a piece focusing on the firing of Trump investigators.

None of these outlets — among others — mentioned that every single DC District Judge approved the use of 18 USC 1512(c)(2) for January 6, and only Carl Nichols required that it include an evidentiary component (the stance ultimately adopted by SCOTUS).

None of these outlets mentioned DC Circuit approved the application.

None mentioned that when SCOTUS required an evidentiary component, they left open the possibility that the fake elector certificates would justify the application.

DOJ just launched an investigation into prosecutors who applied a law in a way approved by over a dozen judges, at least four of them Trump appointees.

Update: On Xitter, an influential propagandist, Julie Kelly, wondered who first applied the 18 USC 1512(c)(2) statute, claiming that Matthew Graves, who is Black, was too stupid to have done so.

I guess she didn’t consider basic rules of physics, which say that a guy confirmed in October 2021 could not have made the decision to charge (just as one example) Proud Boys Nicholas Ochs and DeCarlo with 1512 on February 4, 2021.

Update: 18 USC 1512(c)(2) was charged at least as early as January 11, 2021, with Jacob Chansley. Ed Martin is going to have to investigate Donald Trump! (Or at the very least, Michael Sherwin. He does not want to investigate Michael Sherwin, trust me on this.)

Kash Patel Thinks Assault Defendants Should Be Able to Grab for Guns When Probation Officers Arrive

January 27, 2025/16 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The press continues to largely ignore the work that Jack Smith did, including the footnote in his report where he noted Trump’s support for the Jan6 choir by listing the detention memos for a number of them.

As he did in his 4:17 p.m. and 6:01 p.m. Tweets on January 6, Mr. Trump has provided additional evidence of his intent by continuing to support and ally himself with the people who attacked the Capitol. He has called them “patriots” 135 and “hostaoes ” 136 reminisced about b ‘ January 6 as a “beautiful day,” 137 and championed the “January 6 Choir,” 138 a group of January 6 defendants who, because of their dangerousness, are detained at the District of Columbia jail. 139

139 See United States v. Nichols, No. 21-mj-29, ECF No. 9 (E.D. Tex. Jan. 25, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the “January 6 choir”); United States v. Nichols, No. 2 l-cr117, ECF No. 75 (D.D.C. Dec. 23, 2021) (denying defendant’s motion for pretrial release); id, ECF No. 307 at 27 n. IO, 35-36 (D.D.C. Apr. 30, 2024) (government sentencing memorandum referencing defendant’s involvement in “January 6 choir”); see also United States v. Mink, No. 21-mj-105, ECF No. 19 (W.D. Pa. Jan. 29, 2021) (in prosecution of defendant who later became a member of the “January 6 choir,” ordering defendant’s pretrial detention); United States v. 1vfink, No. 21-cr-25, ECF No. 45 (D.D.C. Dec. 13, 2021) (court order denying defendant’s motion to revoke pretrial detention); United States v. Sandlin, No. 21-mj-110, ECF No. 8 (D. Nev. Feb. 3, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the “January 6 choir”); United States v. Sandlin, No. 2 l-cr-88, ECF No. 31 (D.D.C. Apr. 13, 2021) (denying defendant’s motion for release on bond); id., ECF Nos. 44, 44-1 (D.D.C. Aug. 31, 2021) (mandate return following denial of defendant’s appeal of pretrial detention order); United States v. Shively, No. 21-cr-151, ECF No. 42 (D.D.C. May 9, 2022) (in prosecution of defendant who later became a member of the “January 6 choir,” revoking conditions of release and ordering pretrial detention); United States v. Khater, No. 21-cr-222, ECF No. 25 (D.D.C. May 12, 2021) (in prosecution of defendant who later became a member of the “January 6 choir,” denying defendant’s motion for release from custody); United States v. McGrew, No. 21-cr-398, ECF No. 40 (D.D.C. Nov. 2, 2021) (order of detention pending trial in prosecution of defendant who later became a member of the “January 6 choir”).

Bulwark is one laudable exception. In advance of his confirmation hearing, they did a post using the footnote to focus on Kash Patel’s role in boosting the video. They quote Patel saying, over and over, that the video represents how he boosted the video to “destroy the two-tier system of justice” seemingly applied to Jan6ers.

PATEL DISCUSSED HIS KEY ROLE in producing and promoting the J6 Prison Choir during a March 10, 2023 appearance on Steve Bannon’s War Room podcast. Patel announced that he was “exclusively” releasing for “the first time ever” the video for the choir’s song “Justice for All.”

“We all know the plight of the Jan. 6 prisoners and their families and how due process has been destroyed for so many of them,” Patel told Bannon. He then explained how he and others helped produce the song.

“We also know, or some of us know, that they sing, the Jan. 6 prisoners themselves sing, the national anthem every night for 700 straight plus nights from the jail themselves,” Patel said. He and others thought it “would be cool” if “we captured that audio” and mixed it with “the greatest president, President Donald J. Trump,” reciting the Pledge of Allegiance. “Then we went to a studio and recorded it, mastered it, and digitized it, and put it out as a song,” Patel added.

[snip]

As he went on to promote the song in the weeks that followed, Patel portrayed the J6 Prison Choir as victims of the U.S. justice system. “[‘Justice for All’] was a collaboration between like-minded Americans who wanted to keep the focus on helping to destroy the two-tier system of justice that is rotting America,” Gateway Pundit quoted Patel as saying in a March 21, 2023 post. Patel added that the “net profits” would be used “to financially assist as many Jan. 6 families as we can, and all families of nonviolent offenders will be considered.” (This raises a question: Given that the choir’s members included violent offenders, did any of them, or their families, receive any of the proceeds?)

That said, they relied only on press releases to describe those included in Jack Smith’s footnotes, not the dockets themselves (or better yet, video). I want to focus on a few of the cases to show what the aspiring FBI Director thinks constitutes a two-tier system of justice.

I want to start with one of the least obnoxious people who was in the DC Jail in March 2023, Barton Shively (CourtListener docket). A former Marine, he was originally arrested on January 19, 2021 for assaulting two cops; he would eventually plead guilty to striking one officer’s “hand, head and shoulder areas,” and grabbing another and yelling at him.

But like most others accused of assaulting cops with his own hands (as opposed to a weapon), he wasn’t jailed right away. He was released to home detention, and several times got revisions to his release condition (for example) to make sure he could continue to work and, in May 2022, so he could get treatment for newly diagnosed Hodgkins.

That changed in May 2022, when probation officers showed up and found him with a shotgun and a sword.

On or about May 4, 2022, U.S. probation officers from the Middle District of Pennsylvania conducted an unannounced home visit and found a shotgun, ammunition, knives, and a sword in the defendant’s residence. See Image 10 below. Significantly, the “butt” of that shotgun had a cloth sleeve which stated, “THREE PERCENTERS.”5 Given the nature and seriousness of the violations of his release conditions and his displayed lack of candor, both D.C. Pretrial Service Agency and the U.S. Probation Office for the Middle District of Pennsylvania, inter alia, requested the defendant be removed from all pretrial supervision programs. Based on that report, this Court ordered that a show-cause hearing be scheduled for May 9, 2022. On May 9, 2022, after a hearing regarding the violations, this Court ultimately revoked his Release Conditions and detained Shively until sentencing in this matter. See Court’s Order ECF #42.

At his detention hearing, the probation officers claimed that Shively “reached for a shotgun, prompting one USPO to draw his weapon.”

That’s what led him to be jailed: not the original assault on the cops, but that he allegedly grabbed for a gun when probation officers found he had one that his release conditions prohibited him from even having.

That’s what Kash Patel claims is a two-tier system of justice, that after a guy accused of assault allegedly grabbed for a gun when his probation officers found it, he was detained.

Importantly, on intake, Judge Kollar-Kotelly made sure he would be assessed for the best medical treatment, for which his attorney later expressed appreciation for the “Court’s mindfulness of his medical situation.”

Shively remained in the DC Jail in March 2023 because his attorney asked for — and ultimately got — Kollar-Kotelly to recuse from the case because she had learned, ex parte, of an altercation at the jail in 2022, which led to a delay in his sentencing from February to June 2023.

In the end, in June 2023, Judge Jia Cobb sentenced Shively to 18 months for the assault, less than the 27 months even his attorney suggested.

Apparently, the aspiring FBI Director thinks that men out on pre-trial release should be able to grab a gun they’re prohibited from having when federal probation officers arrive and not get detained.

“Embarrassingly Wrong:” The Ongoing Misinformation Campaign about the Hunter Biden Hard Drive

January 24, 2025/28 Comments/in 2020 Presidential Election, 2024 Presidential Election, Trump 2.0 /by emptywheel

Trump’s Executive Order stripping 51 former spooks of clearance for writing a true letter expressing their opinion that Rudy Giuliani’s claims to have Hunter Biden’s emails “has all the classic earmarks of a Russian information operation” has led to inevitable false claims about the hard drive people falsely call a laptop.

Shockingly, it comes from Shane Harris, who at least while at WaPo would not make the kinds of errors he makes in this piece.

Harris states as fact that the 51 spooks were “embarrassingly wrong” and as proof, asserts that “the emails really did turn out to belong to Hunter Biden.”

But they were wrong. Embarrassingly wrong. The emails really did turn out to belong to Hunter Biden, and they raised legitimate concerns that he was trying to profit from his father’s political position. No evidence ever surfaced that Russia had played a role in bringing the emails to light. Intelligence experts sometimes make bad calls. This was one of those times.

[snip]

Some of the signatories still defend their work by noting, correctly, that they said the emails might be part of some Russian trick, not that they definitely were. That too-cute defense does not absolve them of bad judgment.

Except, as John Brennan noted in an interview on MSNBC, one thing they posited in the letter is that the information might be “accurate information,” noting that Russia did just that in the 2016 presidential election.

Such an operation would be consistent with some of the key methods Russia has used in its now multi-year operation to interfere in our democracy – the hacking (via cyber operations) and the dumping of accurate information or the distribution of inaccurate or misinformation. Russia did both of these during the 2016 presidential election. [my emphasis]

Harris knows this stuff! While the Guccifer 2.0 persona altered some of the documents stolen from the DNC and misrepresented others and Yevgeniy Prigozhin’s trolls engaged in outright fabrication, the emails stolen from John Podesta were authentic. The operation nevertheless succeeded in sucking up all the attention in the last several weeks of the election, with scandals manufactured out of inconclusive emails, just like the ones used in the NYPost story.

So claiming that the spooks were wrong because the emails really did turn out to be Hunter’s simply misrepresents both the letter and the mechanism of information operations.

As for Harris’ claim that, “No evidence ever surfaced that Russia had played a role in bringing the emails to light”?

Even ignoring Lev Parnas’ testimony that Rudy was offered a laptop hacked with the assistance of Russian spies in 2019 (while unverified, that is evidence, and Mykola Zlochevsky got the legal relief from Trump’s DOJ that Parnas claimed Rudy was offering at the time), the available record shows that the FBI didn’t do the most basic work they would have had to do to check for such evidence.

Remember, the currently operative story is that someone claimed to be Hunter Biden dropped off three devices at John Paul Mac Isaac’s store in April 2019. JPMI kept one to made a copy of the data. But no one ever retrieved the laptop or a hard drive on which JPMI stored the data. So after snooping through it all, months later, JPMI’s father offered up the laptop to the FBI. In December 2019 — days after Rudy traveled to Kyiv to meet with Andrii Derkach and the same month when DOJ shut down an investigation into Mykola Zlochevsky — FBI obtained both the hard drive and a laptop using a subpoena referencing a money laundering investigation that is not referenced in the warrant from the known tax investigation.

But there’s little evidence that the FBI checked that story. Indeed, the public evidence suggests there’s something fishy about the hard drive, which was the basis for all the other copies, including the one Rudy got.

Mac Isaac’s own description of his actions does not match that of the FBI. On top of timeline discrepancies (including about whether FBI accessed the device before obtaining the known warrants), that includes misidentifying the devices dropped off at his shop and falsely claiming the laptop ultimately turned over to FBI did not have a removable hard drive (which was JPMI’s explanation for why he copied the laptop in the way he did).
A March 31, 2020 email documented concerns, “about quality and completeness of imaged/recovered information from the hard drive” that “for a variety of reasons [USAO] thought they needed to keep it from the agents” who might testify at trial.
Ten months after obtaining the laptop, the FBI had never checked the creation date of the files on it and the FBI never indexed the laptop (nor did it Bates-stamp the files they used at trial).
Hunter Biden’s laptop data was not introduced at trial via an expert witness. Rather, a summary witness introduced the data, and she clearly testified she had not been asked to check for signs of tampering. The only things she mentioned at trial that validated the laptop is that the laptop matched subpoena information for Hunter’s iCloud (which may mean no more than that it accessed the account) and Hunter’s publicly available iCloud email account had received an email from John Paul Mac Isaac. Those sworn claims were far short of the things investigators had earlier claimed tied Hunter to the laptop: an exchange of calls, a local purchase, and “other intelligence.”
The expert validation used in lieu of expert testimony does not identify the device(s) it validated and only refers to a single extraction report even though two separate extractions (one of the hard drive, another of the laptop) were done.
According to prosecutors, the Cellebrite report of the hard drive from which (according to JPMI) all subsequent copies were made is 62% larger, by page count, than the Cellebrite report of the laptop itself.

FBI’s thin validation of the laptop could not rule out involvement of others, not least because of Hunter’s otherwise erratic behavior in the period.

At least seven different laptops had accessed Hunter’s iCloud account in the years leading up to Mac Isaac obtaining it; Zoe Kestan testified that Hunter would do business from her laptop and she had access to his bank account via that laptop.
Kestan also testified that Hunter would give her and his drug dealers one time codes so they could access his bank accounts.
In January 2019, Hunter claimed that his Russian drug dealer had stolen a laptop (this may actually have been an iPad) from him in August 2018; this was the same period when new devices accessed Hunter’s Venmo account from two different cities within 12 minutes of each other. David Weiss appears to have made an error in the Tax Indictment about a closely related Venmo transaction.
The access to the laptop in FBI custody does not match Hunter’s normal pattern after obtaining a new device of logging into his iCloud account and at least one of his Google accounts in fairly quick succession.
The days before Hunter bought the laptop that would eventually end up in Fox News pundit Keith Ablow’s custody, he paid a Slavic sex worker over $8,000 via four different transactions and different bank accounts, an outlier both in amount and the multiple payment methods.
The laptop itself has an inexplicable collection of data, much of which is unavailable from the iCloud backups obtained with warrants in 2019.

Hunter Biden was an addict. As such he had almost no control over his own devices, and both Kestan’s testimony and his own memoir describe that he routinely lost devices. Particularly given the known access he provided others and the number of devices that accessed his iCloud account, it would be child’s play for nefarious actors to package up Hunter’s data on a laptop.

And, at least as late as David Weiss made that error in the tax indictment, no one at FBI or DOJ appears to have tried to check what happened to Hunter Biden’s devices (I think the Kestan testimony may have been based on interviews just before the June gun trial). By all appearances, DOJ had no plan to use evidence from the laptop had the tax case gone to trial.

In his testimony for Jim Jordan’s investigation regarding the letter, James Clapper repeatedly said he’d like a statement about the FBI’s forensic analysis of the laptop. At Kristin Wood’s interview by the Committee, Trump’s OMB Deputy designee (and then Congressman) Dan Bishop said, “If, in fact, the FBI has not conducted a forensic investigation, or has conducted a forensic investigation and has suppressed the results, should the American people continue to defer to the FBI?” Yet when I tried to liberate that forensic report last year, DOJ successfully fought its release.

I’m not saying that this was a Russian operation. I’m saying that, based on the public record, the FBI did scandalously little to even test whether it could be; there’s no evidence they took the steps they would have needed to rule it out and plenty of reason to believe they did not.

The FBI never even indexed the laptop, not over the course of four years of reliance on it. They’re in no position to make claims about its provenance.

And so, Shane Harris is in no position to lecture spooks about them being “embarrassingly wrong.”

Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days

January 21, 2025/18 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

Aileen Cannon issued her ruling withholding any sharing of Jack Smith’s Volume Two — which she extended to thirty days after all appellate proceedings.

2. Attorney General Garland or his successor(s), the Department of Justice, its officers, agents, officials, and employees, and all persons acting in active concert or participation with such individuals, are enjoined from (a) releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice, or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof

3. This Order remains in effect pending further Court order, limited as follows. No later than thirty days after full conclusion of all appellate proceedings in this action and/or any continued proceedings in this Court, whichever comes later, the parties shall submit a joint status report advising of their position on this Order, consistent with any remaining Rule 6(e) challenges or other claims or rights concerning Volume II, as permitted by law. Any disagreements between the parties can be denoted separately.

She claims the report — which would only be released in redacted form — includes non-public information (and also revealed that Trump was claiming attorney-client privilege over some of the material).

Volume II includes detailed and voluminous discovery information protected by the Rule 16(d)(1) Protective Order entered in this case [ECF No. 27]. Much of this information has not been made public in Court filings. It includes myriad references to bates-stamped information provided by the Special Counsel in discovery and subject to the protective order, including interview transcripts, search warrant materials, business records, toll records, video footage, various other records obtained pursuant to grand jury subpoena, information as to which President-Elect Trump has asserted the attorney-client privilege in motions in this proceeding [ECF No. 571 (sealed); ECF Nos. 641, 656], potential Rule 404(b) evidence, and other non-public information.

Along the way, she notes that no one from Congress has asked for the report, but that the Democratic members of HJC called for its public release.

12. With respect to the Department’s assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There 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. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira.10 Finally, although the Department refers generally to “legislative interest” concerning special counsels as a basis to deny Defendants’ Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has 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.

Note that she ignores Kash Patel’s pending confirmation proceedings.

Cannon also makes a patently false claim — that DOJ has never released Special Counsel information prior to the conclusion of criminal proceedings.

Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant—and absent a litigation-specific reason as appropriate in the case itself— sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now.

The Mueller Report did that: It included (but redacted) information on both the Prigozhin troll case and the Roger Stone one.

Ah well. I did say that Jamie Raskin would have been better off attempting to intervene personally.

Cannon, having released the order after folks at SDFL quit, now makes much of the fact that no one from SDFL is noticed on this matter.

Update: As a reminder, I posted on some of the stuff that would appear in the report here. It sounds like the report itself has a lot more description of surveillance footage.

Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!

January 19, 2025/27 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

In an interview with Marc Elias the other day, Dan Goldman made a number of alarming claims. He said that before the release of Jack Smith’s January 6 report, “we didn’t really know about … the extensive litigation that the Special Counsel had to go through just to get this evidence.” That is, Goldman admitted that he missed the unsealing, in October, of the very documents Jack Smith cited to describe that process (which I wrote about at the time). Goldman missed the opportunity to make a stink about this before the election.

Goldman also wondered “if Elon Musk and X, while he has owned it, has ever not cooperated in the same way [as they did in response to a warrant for Trump’s Twitter account] in a different case.” We know the answer to that: according to an opinion Chief Judge Boasberg unsealed (and first spotted by Kyle Cheney, who played a key role in liberating the Executive Privilege dispute), from January to March of last year, Xitter refused to turn over mere subscriber records in what sounds like a leak investigation.

Much later in the interview (after 19:00), Goldman said,

Volume Two of the report is going to provide a lot more information that we don’t know. The litigation in the January 6 case, including the memo outlining all of the evidence, has been so extensive that, as we see from Volume One, there really isn’t that much that we didn’t know. There was also an entire Congressional Committee that did this investigation. This has been exhaustively investigated. And yes they did get more evidence because they had grand jury power. They got more witnesses to speak than the January 6 Committee did. But we’ve known about that.

We know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others. And one of the things that has jumped out at me in that case is that in one of the filings, the Department of Justice, Special Counsel, said, that there evidence includes why Donald Trump retained the information illegally, and what he was planning to do with it. [my emphasis]

From there, Goldman went on to call for Merrick Garland to dismiss the case, which I’m not sure Garland can do without some judge going along (which was the hold up in the Mike Flynn case).

Now, as I have laid out, Jack Smith eschewed the opportunity to make new information available in Volume One of the report. For example, he didn’t explain why an investigation into Trump’s fundraising and spending ended without charges. Based on what we’ve seen in Volume One, I doubt we’d get the kinds of details Robert Hur provided in his 388-page report, describing every document that wasn’t charged and why not. I doubt we’d learn why the FBI believed there was a tie between a grant of clemency for Roger Stone and a document, classified Secret, about Emmanuel Macron, both found in Donald Trump’s own desk drawer. I doubt we’d learn why Trump compiled low-level classified information into a document with messages from a book author, a religious leader, and a pollster.

And I doubt we’d learn what Trump was planning to do with those classified documents.

I want to see the report. But I doubt it’ll include what Goldman hopes it will.

But it is also the case that we have already gotten a great deal of additional information about the investigation.

It’s not the case, for example, that “we know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others.” This filing describes that process at length, relying on both dozens of documents that Trump himself liberated and 302s from those involved, including a key White House Office of Records Management official and Mark Meadows. This section describes Meadows’ involvement, which (along with actions taken by a former Trump White House Counsel, probably Pat Philbin) led to the involvement of Biden White House Counsel Jonathan Su, the basis of Trump’s bogus claim that Biden’s White House pushed the investigation into Trump.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

Exhibit D, cited to support a description of a former Trump official who warned that Trump faced criminal exposure, links to this complete 302, from someone whose potty mouth resembles Eric Herschmann. It describes a bunch of things:

How on November 21, 2021, he warned Trump to give the documents back: “Don’t give them a noble reason to indict you, because they will.”
How a “total moron” who resembles Boris Epshteyn insinuated himself with Trump with claims of voter fraud and subsequently tried to use something, perhaps claims fed to credulous reporters that he was serving a legal function, to cover for his past activities ( a document Trump himself liberated shows call records between this person resembling Epshteyn and a person resembling Chief of Staff designate Susie Wiles).
A February 2022 call in which someone resembling Tom Fitton told Trump he didn’t have to send documents back because of Fitton’s “Clinton Socks” ruling,
A prediction that Walt Nauta would be pardoned if he were charged with lying to the FBI.

But it also describes an extended description of 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.

Another dispute — about whether Jay Bratt threatened to retaliate against Stanley Woodward if he didn’t get Walt Nauta to cooperate — includes a long discussion about Kash’s testimony. It revealed how Kash tried to delay compliance with a grand jury subpoena indefinitely by hiring a lawyer already busy defending a January 6 seditionist, and when Kash did first testify, the aspiring FBI Director 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]

This is the same kind of extended discussion of the delays that Trump and his flunkies created that Goldman claimed, incorrectly, first became available in Volume One of Smith’s report. And it (plus details of Tim Parlatore’s efforts to stall ongoing searches) has been public since April.

Other disputes provided a bunch more information, including pictures, of where and how Trump stored the documents he withheld, including one of this box, in which Trump was storing a document classified Formerly Restricted (that is, a document pertaining to nuclear weapons), along with nine other documents, underneath a Christmas pillow and some bubble wrap (I annotated the photo to show that the documents charged in Counts 12 through 21 were found in it).

Here are discussions of what was hidden under the bubble wrap.

I tried to put these pictures in context in this post and this post.

A passage in the 193-page 302 transcript from Chamberlain Harris (focusing on how she scanned documents including sensitive White House schedules) describes that the door to the storage closet had only the kind of lock you’d find in a residential bathroom — a pinhole they’d open with a tiny flat screwdriver.

Person 10 [Harris]: They used to unlock it for me, because you could lock it from the inside.

Mr. Thakur: Okay. This is obviously after a lock was placed there, they would unlock it for you?

Person 10: No, this was before.

Mr. Thakur: Okay. So are you talking about a lock to another door, or?

Person 10: It’s a door with a pinhole in it.

Mr. Thakur: A door with a pinhole?

Person 10: Like, I don’t know, a circle doorknob?

SA 41: Kind of like what you would find on residential door inside of a home? So it might have a lock like that one on one side of it then other side, rather than an actual place for a key, it’s sort of like a —

Person 10: Yeah.

SA 41: — very tiny screwdriver?

Person 10: Um-hmm.

SA 51: I see. But that was only on the inside of the door. So you — reasonably couldn’t lock it from the outside unless they used that little pin to reengage the lock from the outside?

Person 10: You would just lock it when you left.

Finally, also in April, we got both the interview transcript and grand jury transcript from Walt Nauta.

In other words, there’s far, far more that got released as part of litigation in the documents case than the January 6 case.

And Dan Goldman, whose job it is to oversee such investigations, seemingly knows about none of that: Not the description of how the aspiring FBI Director stalled the investigation. Not the document claiming that the “declassify everything” claim Kash first made was a lie. And not the description of the back-and-forth with NARA that Goldman says he wants.

It’s all there in the docket. And has been (for the most part) since April.

If you want to know how Democrats failed to make more of a political case against Trump during the election, you can start with the fact that Dan Goldman — one of the Democrats’ most forceful voices on rule of law, a former TV personality, and a member of the House Judiciary Committee — knows almost nothing about what was made public in either of the federal cases against Donald Trump and as a result did little to make a big deal of that before the election.

Fridays with Nicole Sandler

January 17, 2025/17 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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

January 17, 2025/23 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

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

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

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

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

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

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

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

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

Which Garland adopted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Inadequate Declination Discussions in Both Special Counsel Reports

January 16, 2025/25 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel /by emptywheel

In a post in November and a podcast appearance with Harry Litman, I argued that the Special Counsel regulations mandating that prosecutors describe declination decisions, as well as prosecution decisions, might produce the most interesting part of Jack Smith’s report.

Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

After all, Robert Hur wrote a humdinger of a 388-page report that was nothing but declination decisions.

But in my opinion, neither Jack Smith nor David Weiss adequately fulfilled the terms of that mandate.

To be sure, Jack Smith did include several important sections describing declination decisions. As I laid out here, Smith described why prosecutors had not charged Trump with insurrection, the sole charge that could have disqualified him from returning to the presidency. A footnote explained that prosecutors had considered charging Trump under the Anti-Riot Act, but courts have struck down parts of it. The footnote also explained that because prosecutors “did not develop proof beyond a reasonable doubt that the conspirators specifically agreed to threaten force or intimidation against federal officers,” (presumably including Mike Pence), they did not charge Trump with conspiracy to injure an officer of the United States.

In a separate paragraph, Smith provided an unsatisfying answer about why he didn’t charge any of Trump’s co-conspirators.

Before the Department concluded that this case must be dismissed, the Office had made a preliminary determination that the admissible evidence could justify seeking charges against certain co-conspirators. The Office had also begun to evaluate how to proceed, including whether any potential charged case should be joined with Mr. Trump’s or brought separately. Because the Office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump–the head of the criminal conspiracies and their intended beneficiary–this Report does not elaborate further on the investigation and preliminary assessment of uncharged individuals. This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.

My suspicion is that the prosecution, which included two prosecutors who dealt with the aftermath of Trump pardoning his way out of criminal exposure in the Russian investigation, recognized it was not worth charging others until such time as Trump couldn’t pardon their silence. That is consistent with the seeming late addition of a Ken Chesebro interview, which seems to reflect his troubled efforts to cooperate in state cases. But if this investigation looked like it did because of Trump’s past success at pardoning his way out of criminal exposure, it would be really useful to explain that.

It would have been useful, too, to point out that the same Speech and Debate protections that created a 16-month delay in obtaining texts from Scott Perry’s phone also made it impossible to charge any of the Members of Congress who facilitated Trump’s coup attempt. Those who don’t understand the breadth of Speech and Debate need to be told that.

So Smith did include some of his declination decisions, but some of those discussions are less than satisfying.

But there are two areas where more might have been useful. For example, for some time, prosecutors investigated whether Trump used funds raised for election integrity on other things, like providing big contracts to people who had remained loyal to him. If Trump defrauded his rubes but for some reason prosecutors couldn’t charge him for it, it would be useful to lay that out. That prong of the investigation is unmentioned in the report, which in many respects appears designed to avoid antagonizing Trump.

There’s a more important discussion that does appear in the report, but which is not treated as a prosecutorial decision. In the section on Litigation Challenges, Smith includes a long discussion titled, “Threats and Intimidation of Witnesses.”

A significant challenge that the Office faced after Mr. Trump’s indictment was his ability and willingness to use his influence and following on social media to target witnesses, courts, and Department employees, which required the Office to engage in time-consuming litigation to protect witnesses from threats and harassment.

Mr. Trump’s resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies. A fundamental component of Mr. Trump’s conduct underlying the charges in the Election Case was his pattern of using social media-at the time, Twitter-to publicly attack and seek to influence state and federal officials, judges, and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr. Trump’s scheme. After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed. See ECF No. 57 at 3 (one witness identifying Mr. Trump’s Tweets about him as the cause of specific and graphic threats about his family, and a public official providing testimony that after Mr. Trump’s Tweets, he required additional police protection). In the context of the attack on the Capitol on January 6, Mr. Trump acknowledged that his supporters “listen to [him] like no one else.” 260

The same pattern transpired after Mr. Trump’s indictment in the Election Case. As the D.C. Circuit later found, Mr. Trump “repeatedly attacked those involved in th[e] case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony,” Trump, 88 F.4th at 1010. Those attacks had “real-time, real-world consequences,” exposing “those on the receiving end” to “a torrent of threats and intimidation” and turning their lives “upside down.” Id. at 1011-1012. The day after his arraignment, for example, Mr. Trump posted on the social media application Truth Social, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Id. at 998. The next day, “one of his supporters called the district court judge’s chambers and said: ‘Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.'” Id. 26 l Mr. Trump also “took aim at potential witnesses named in the indictment,” id. at 998-999, and “lashed out at government officials closely involved in the criminal proceeding,” as well as members of their families, id. at 1010-1011.

To protect the integrity of the proceedings, on September 5, 2023, the Office filed a motion seeking an order pursuant to the district court’s rules restricting certain out-of-court statements by either party. See ECF No. 57; D.D.C. LCrR 57.7(c). The district court heard argument and granted the Office’s motion, finding that Mr. Trump’s public attacks “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” ECF No. 105 at 2. Because no “alternative means” could adequately address these “grave threats to the integrity of these proceedings,” the court prohibited the parties and their counsel from making public statements that “target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” Id at 3. The court emphasized, however, that Mr. Trump remained free to make “statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that [he] is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of[his] current political rivals.” Id. at 3.

Mr. Trump appealed, and the D.C. Circuit affirmed in large part, finding that Mr. Trump’s attacks on witnesses in this case posed “a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function,” with “the undertow generated by such statements” likely to “influence other witnesses” and deter those “not yet publicly identified” out of “fear that, if they come forward, they may well be the next target.” Trump, 88 F.4th at 1012-1013. Likewise, “certain speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of th[e] case,” since “[m]essages designed to generate alarm and dread; and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration of justice.” Id at 1014. [snip]

Sure, this was treated as a litigation issue. But, in theory, there were alternative means to prevent Trump from attacking witnesses. When Jan6er Brandon Fellows — like Trump accused of obstruction — made similar threats, but without the big mouthpiece that makes it so dangerous, Trump appointee Trevor McFadden put him in an extended pretrial detention. You were never going to be able to treat Trump like a normal pretrial defendant, but shouldn’t you make that point?

More importantly, witness intimidation is also a crime. It’s the same statute, 18 USC 1512, under which Trump was charged. In fact, when Trump challenged his gag before the DC Circuit, Patricia Millett asked John Sauer where criminal witness tampering ended and the kinds of threatening language he was using began (and she treated the means by which Trump makes threats at length in her opinion upholding much of the gag).

Judge Millett then tries a different tack. She wants to know if Sauer concedes that a trial judge can constitutionally limit a criminal defendant’s speech in any way beyond what’s already limited by criminal laws, like the witness tampering statute. She notes that the Supreme Court’s conception of even the clear and present danger test is still that it is a balancing test that requires consideration of the weighty constitutional interest in protecting the integrity of a criminal trial as well as the First Amendment interests of the defendant.

Sauer responds that Brown guarantees the defendant “absolute freedom” on core political speech.

“So there is no balance,” says Judge Millett. She adds that calling it “core political speech” begs the question of whether it is in fact political speech or whether it is speech “aimed at derailing or corrupting the criminal justice process.” Sauer responds that Trump’s campaign speech is “inextricably entwined” with freely responding to the entire election interference prosecution.

Trump’s ability and willingness to sic mobs on all his enemies is the core of his conduct, both on January 6, during this litigation, and going forward. And the incoming Solicitor General argued that such threats and intimidation is “core political speech.”

It is the reason he threatens democracy in America.

Yet in discussing his thinking about how to deal with the threat posed by Trump’s threats, Smith didn’t even discuss why Trump could threaten Mike Pence in advance of a trial in which Pence would be expected to testify about how Trump almost got him assassinated without being charged with witness tampering.

With no awareness, Trump’s witness tampering became a litigation challenge, rather than the crime it might be treated as for anyone else.

Which brings me to David Weiss’ report, which is nothing short of pee my pants hysterical. It is riddled with procedural and evidentiary problems, and wild refashionings of the public record. Though I commend Derek Hines for finally ending his practice of fabricating what Hunter Biden’s memoir says, fabrications he relied on repeatedly to convince Judge Noreika there was no selective prosecution and to convince the jury of Hunter’s guilt; I hope to return to this to show that, by abandoning his fabrications, Hines actually proves he didn’t have the evidence to prosecute Hunter he claimed to have.

Much of the report is a “doth protest too much” effort to claim that the investigation wasn’t riddled with political influence. But tellingly and fucking hilariously, all those complaints are directed to Joe Biden, including this accusation:

Politicians who attack the decisions of career prosecutors as politically motivated when they disagree with the outcome of a case undermine the public’s confidence in our criminal justice system.

Weiss blames Joe Biden for undermining the public’s confidence in our criminal justice system even though his discussions of Hunter Biden’s claims of selective prosecution, Weiss made no mention of the very specific references Hunter made to Trump’s interventions in the case, including Trump’s public attack on the outcome of the original plea deal that contributed, according to Weiss’ own sworn testimony, to threats that led him to worry for the safety of his family.

“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”67

“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”68

“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .” 69

[snip]

“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. . . . ”

After spending much of his report attacking Joe Biden, Weiss claimed, “when politicians expressed opinions about my conduct, I ignored them because they were irrelevant.”

I hope to lay out all the other hilarity before such time as Weiss gets dragged before Congress.

Weiss’ charging decisions have flaws. My favorite is how, after dutifully laying out that Principles of Federal Prosecution require considering whether the suspect “is subject to effective prosecution in another jurisdiction,”

Even when a prosecutor determines that the person has committed a federal offense and that the evidence is sufficient to obtain a conviction, the Principles require that he also assess whether three other factors exist that may counsel against prosecution:

[snip]

(2) the person is subject to effective prosecution in another jurisdiction; or

Weiss then ignores the fact that Hunter was subject to charges in Delaware, which declined to prosecute.

It’s in the declinations, though, where David Weiss proves he’s falsely disclaiming selective prosecution. Several times, Weiss plays coy rather than explaining why he didn’t charge things, like tax crimes associated with 2014 and 2015, even though he stated under oath in November 2023 that he would have the “opportunity in the submission of a report to address such matters.”

19 26 U.S.C. § 6103(a) prohibits the disclosure of “return information,” which includes information disclosing “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Id. § 6103(b)(2)(A). Accordingly, I cannot publicly discuss any other tax years that may have been under investigation. See Snider u. United States, 468 F.3d 500, 508 (8th Cir. 2006).

I assume Biden is happy that Weiss didn’t lay out how Weiss was still pursuing Kevin Morris’ support for Hunter even after the guilty verdicts (but as I’ll show one of his temporal games involves just that),

President Biden has chosen to issue a “Full and Unconditional Pardon” for Mr. Biden covering “those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.” 152 Accordingly, I cannot make any additional charging decisions as to Mr. Biden’s conduct during that time period. It would be inappropriate to discuss whether additional charges are warranted.

But Weiss didn’t have the integrity, as Jack Smith did, to admonish, “This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.” He lets the rabid mobs believe they are.

It’s in how Weiss buries his own selective prosecution where his declinations are most corrupt. In his letter conveying the report to Merrick Garland, he describes that he is adhering to Department policy by not identifying uncharged third parties.

Therefore, in drafting this report, I was mindful of Department policies that caution restraint when publicly revealing information about uncharged third parties. Specifically, with respect to “public filings and proceedings,” Justice Manual § 9-27.760 provides that prosecutors “should remain sensitive to the privacy and reputation interests of uncharged parties,” and that it is generally “not appropriate to identify . . . a party unless that party has been publicly charged with the misconduct at issue.” 7 The Justice Manual also sets forth factors to guide the disclosure of information about uncharged individuals, such as their privacy, safety, and reputational interests; the potential effect of any statements on ongoing criminal investigations or prosecutions; whether public disclosure may advance significant law enforcement interests; and other legitimate and compelling governmental interests.

As a result, David Weiss doesn’t explain why he prosecuted Hunter Biden for lying on a gun form and he prosecuted Biden nut Alexander Smirnov for lying to his FBI handler in an attempt to frame Joe Biden, but he didn’t prosecute anyone from the gun store who allegedly engaged in the same kind of conduct that Hunter Biden and Alexander Smirnov did: make a false statement on a gun form and also coordinate a story in an effort to … create a political attack on Joe Biden during an election year.

The reasonable reasons why Weiss decided to immunize Ron Palimere yet charge Hunter all debunk much of the rest of his report, specifically with regards to deciding there was plenty of evidence to charge a gun crime in 2023, before entering into the failed plea deal. Either prosecutors knew Palimere had doctored the form when Weiss made that supposed prosecutorial decision, or (as he implied in court filings) he only discovered it when Hunter’s lawyers raised it, and he gave Palimere immunity so he could still win conviction against Hunter, in which case he never looked at the evidence before charging Hunter (which is consistent with virtually every other fact in the case).

Still, it’s selective prosecution. Prosecute the gun crime that Republicans — including Palimere — demanded be prosecuted, but immunize Palimere, who testified to treating other VIP customers similarly.

And Smith demonstrates that, contra Weiss, one can adhere to Justice Manual requirements yet still admit there was another suspected crime. In his section explaining why he didn’t charge Trump’s co-conspirators, he revealed that he did refer a subject of the investigation to another US Attorneys office.

In addition, the Office referred to a United States Attorney’s Office for further investigation evidence that an investigative subject may have committed unrelated crimes.

Weiss could have used a similar approach to describe that he immunized someone — someone who would pose an ongoing risk to the public if he continues to engage in the same behavior — for effectively the same crime for which he prosecuted Hunter Biden.

But that would give up his entire game.

Whatever else these Special Counsel reports reveal about our justice system, the blind spots both Special Counsels use to coddle Trump confirm that Special Counsels will never be able to hold Trump accountable for the existential threat he poses to democracy.

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

January 15, 2025/19 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel /by emptywheel

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

Smith comes to Garland’s defense

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

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

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

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

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

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

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

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

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

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

Other data show the slow start.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Timeline

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

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

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

March 5, 2021: Second allegedly cooperative interview with Straka

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

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

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

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

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

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

September 2021: DOJ subpoenas records from Sidney Powell grift

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

Fall 2021: Thomas Windom appointed to form fake elector team

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

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

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

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

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

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

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

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

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

January 31, 2022: DOJ opens grand jury investigation

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

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

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

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

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

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

April 2022: DOJ requests transcripts from J6C

May 2022: DOJ subpoenas all NARA records provided to J6C

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

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

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

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

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

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

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

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

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

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

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

July 22, 2022: Marc Short appears before grand jury

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

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

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

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

September 27, 2022: Howell approves sharing of memoir

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

November 18, 2022: Merrick Garland appoints Jack Smith

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

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

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

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

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

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

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

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

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

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

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

April 27, 2023: Mike Pence testifies before grand jury

August 1, 2023: Jack Smith indicts Trump

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

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

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

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

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

January 9, 2024: DC Circuit argument

February 6, 2024: DC Circuit Immunity decision

May 2024: Original trial date

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

July 1, 2024: SCOTUS immunity decision

August 7, 2024: Chutkan receives mandate from immunity decision

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

January 7, 2025: Jack Smith report

How Right Wingers Rushed to DEI Hire Pete Hegseth

January 15, 2025/80 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

Pete Hegseth is wildly unqualified to run DOD. He described yesterday the most people he had ever supervised was 100. The non-profit budgets that went broke under his stewardship were in the $10 million range. He has never supervised an audit yet claims he’ll be the guy who finally ensures the Pentagon passes one.

Roger Wicker seemed certain that Hegseth wasn’t man enough to withstand a second round of questioning — a concession that Hegseth is weaker than Hillary Clinton, I guess, since she once sat for 11 hours of questioning.

As such a manifestly unqualified candidate, his increasingly certain confirmation to be Defense Secretary is the quintessential DEI hire, someone hired for his culture and identity rather than his qualifications. The hiring of someone for who he is and not any qualifications he might have is precisely what right wingers have been leading jihads against for years. And yet the entire MAGA world is rushing headlong to install a guy with no qualifications to run DOD.

To be sure, Hegseth is qualified for a few things Trump wants from him. He made it clear yesterday he’ll implement unlawful orders from Trump, including to use the military to support Trump’s mass deportations or to shoot protestors. And he’ll defend those service members who implement those unlawful orders loudly and shamelessly. That’s what Trump saw Hegseth doing on Fox News. That’s why he got hired.

The how of all this — which Rebecca Traitster laid out here — matters.

Sure, Hegseth has worked on cultivating the three women Senators who might oppose him: Joni Ernst, Susan Collins, and Lisa Murkowski. In her statement announcing she will support him, Joni Ernst listed the concessions on women in the military — and that audit Hegseth has no qualifications to deliver.

After four years of weakness in the White House, Americans deserve a strong Secretary of Defense,” said Senator Joni Ernst. “Our next commander in chief selected Pete Hegseth to serve in this role, and after our conversations, hearing from Iowans, and doing my job as a United States Senator, I will support President Trump’s pick for Secretary of Defense. As I serve on the Armed Services Committee, I will work with Pete to create the most lethal fighting force and hold him to his commitments of auditing the Pentagon, ensuring opportunity for women in combat while maintaining high standards, and selecting a senior official to address and prevent sexual assault in the ranks.

After a campaign threatening unlimited donations to ouster her, Hegseth has given Ernst the cover she’ll need to take a vote that she must know is an abdication of her constitutional duty to advise and consent.

But Hegseth pointedly did not meet with any Democrat but Ranking Member Jack Reed (who excoriated his lack of qualifications in an opening statement).

When Democrats asked Hegseth about allegations of sexual misconduct or alcohol abuse, Hegseth never denied any of it; he simply said those were anonymous smears (even when Tim Kaine and Mark Kelly noted there are names attached to some of these allegations)

When Kelly asked Hegseth if he had been under oath when providing those answers, Hegseth again attacked the claims.

When Democrats asked Hegseth if such behavior would disqualify him — which should have elicited a commitment that if and when he is proven to be a drunk or a philanderer going forward, he’d have to step down — he refused to answer.

Tammy Duckworth asked a number of pointed questions (including about whether he had led an audit), including what international negotiations the Secretary of Defense conducts and whether he could name an ASEAN country (apparently Hegseth was so poorly prepared to answer Democrats’ questions, no one thought to warn him Duckworth might ask questions about Thailand, where she was born to an American service member father). Hegseth could only think of South Korea, Japan, and Australia among our allies in the region, none of which is in ASEAN.

Republicans dismissed his bumbling responses by noting that ASEAN is not a military alliance. Democrats did not note, in return, that that nevertheless betrays ignorance about the Philippines, a country at the center of our conflict with China, something that Hegseth (and every Republican on the committee) claim is a paramount concern.

With just a few exceptions, though, Democrats failed to do what they needed to do to create a video confrontation the likes of which might make an effective response to ads (above) already running in Iowa that might dissuade Republicans from supporting him or — when and if his incompetence blows up and harms the US — holds them accountable for their abdication of duty.

WSJ’s editorial board, which would love to find a way to get someone more competent, deemed Tim Kaine’s questioning about Hegseth’s lack of transparency about a sexual assault allegation documented in a police report to be the most effective.

The most effective Democratic questioning came from Virginia’s Tim Kaine, who wanted to know why Mr. Hegseth didn’t disclose to the Trump team a settlement he paid to a woman who accused him of sexual assault. Mr. Hegseth kept saying he was “falsely charged” but never answered the question.

This is right: Democrats need to focus their opposition in a way that it would incur a cost for Republicans. Painting Hegseth as a guy who kept secrets from Trump is a more effective way of hitting his transparency failures than painting the public as a victim. And when they asked about Hegseth’s more fundamental disqualifications — his unwillingness to back the Geneva Conventions, for example — Democrats failed to explain the impact of that, an invitation for others to torture American service members.

Kaine also released the most effective summary of the hearing — a screen cap showing a Republican prop complaining about lowered standards purportedly tied to diversity that misspelled military.

Republicans claim to oppose “DEI” because it lowers standards. At the same time, at a time when DOD increasingly has to rely on a second chance program that Hegseth endorsed to qualify (disproportionately male) candidates with physical, educational, or legal disqualifications, they’re rushing to install someone whose disqualifications may do real damage, even assuming America’s adversaries don’t find a way to use them to compromise the Defense Secretary.

And now, having capitulated to Trump’s demand to install someone who is so obviously unqualified to lead DOD, it’ll make it easier for Republicans to confirm Tulsi Gabbard and RFK Jr. You’ve already put the good of the country behind loyalty to Trump.

Trump and his allies bullied the Senate into backing a DEI Christian Nationalist, one who himself backs DEI for (ha!) fat men with criminal records.

The dynamic needs to be laid out clearly: When pushed, Republicans did precisely what they claim to oppose. They chose to make the US less secure because Trump demanded personal loyalty over loyalty to country.

Update: I made a picture to explain why Hegseth’s utter ignorance about ASEAN matters.