In Attempting To Claim WaPo Doesn’t Chase Rat-Fucks, WaPo Lies about Chasing Rat-Fucks

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I’m the rarity among lefties who supports the decision of Politico, WaPo, and NYT (thus far) to not publish the actual files that a persona suspected to have ties to Iranian hackers sent them. That’s true, partly because I think this hack could be even more dangerous than the one of Hillary. But it’s also true because of the opportunity cost that publishing stolen documents incurs.

I prefer Kamala Harris’ message to remain the affirmative message she’s running on, and to the extent that those outlets are doing reporting like the story further developing the suspected $10 million payment via Egypt to Trump, I’d like them to continue to pursue real reporting, as well.

One of the real impacts of the files Russia hacked in 2016 is that they distracted journalists from harder work, work about what a corrupt man Trump is. Campaign reporters are already distracted too easily by nonsense stuff; they don’t need any further distractions from their day job.

That said, reporters don’t have to publish the actual documents to address something that is clearly newsworthy about the files. As Politico explained, the main thing the persona has sent so far was a draft of the vetting document for JD Vance and Marco Rubio.

A research dossier the campaign had apparently done on Trump’s running mate, Ohio Sen. JD Vance, which was dated Feb. 23, was included in the documents. The documents are authentic, according to two people familiar with them and granted anonymity to describe internal communications. One of the people described the dossier as a preliminary version of Vance’s vetting file.

The research dossier was a 271-page document based on publicly available information about Vance’s past record and statements, with some — such as his past criticisms of Trump — identified in the document as “POTENTIAL VULNERABILITIES.” The person also sent part of a research document about Florida Sen. Marco Rubio, who was also a finalist for the vice presidential nomination.

Note, this mirrors one of the first things Guccifer 2.0 released in 2016: Hillary’s oppo dossier on Trump. So in addition to its use of an AOL account, this persona is adopting another of the Russian persona’s tactics.

Again, I’m cool with outlets sitting on the dossier itself. But the content of it is newsworthy. That’s because after JD Vance’s rocky rollout, both donors and Trump himself are asking whether vetters were surprised by Vance’s misogynist public statements.

Over the past two weeks, Mr. Trump has fielded complaints from donors about his running mate, JD Vance, as news coverage exploring Mr. Vance’s past statements unearthed — and then exhaustively critiqued — remarks including a lament that America was run by “childless cat ladies.”

Mr. Trump dismissed out of hand donors’ suggestions that he replace Mr. Vance on the ticket. But Mr. Trump privately asked his advisers whether they had known about Mr. Vance’s comments about childless women before Mr. Trump chose him.

I’d also like to know if Trump’s vetting team knew of the pictures of JD wearing drag while at Yale, which have become the subject of memes on social media.

Whether the dossier was comprehensive matters (particularly given that a law firm also involved in Trump’s criminal defense completed it). It matters, most of all, because Trump has swapped the mediocre Ivanka as his primary familial advisor for the incompetent Don Jr, and the failson had a key role in picking JD.

So it would be newsworthy to reveal the scope and the thoroughness (or not) of the vetting document.

That said, I think every outlet that is sitting on these documents, particularly if they’re withholding details about any oversights in JD’s vetting document, owes the public an explanation of why they’re adopting a double standard as compared to their poor choices from 2016.

WaPo, which is trying to hunker through controversy about Will Lewis’ possible role in covering up Murdoch’s phone hacking,  tried to do that yesterday. Matt Murray boasted that outlets were taking a breath, and then went on to claim that the vetting document isn’t newsworthy because the six-month old vetting document isn’t, “fresh or new enough.”

“This episode probably reflects that news organizations aren’t going to snap at any hack that comes in and is marked as ‘exclusive’ or ‘inside dope’ and publish it for the sake of publishing,” said Matt Murray, executive editor of The Post. Instead, “all of the news organizations in this case took a deep breath and paused, and thought about who was likely to be leaking the documents, what the motives of the hacker might have been, and whether this was truly newsworthy or not.”

[snip]

“In the end, it didn’t seem fresh or new enough,” Murray said.

WaPo even attempted to address something virtually all discussions about using rat-fucked documents in the context of the suspected Iranian hack do not: the treatment of the Hunter Biden laptop, the most innocent provenance explanation for which is that, after pursuing a laptop from foreigners with ties to Russian intelligence for a year, Rudy Giuliani received just such a laptop out of the blue from a blind computer repairman.

Here’s what WaPo claims about how reserved news organizations were with the hard drives described as the Hunter Biden laptop.

News organizations have been tested since 2016. Wary of (1) hacked materials since then, many proved reluctant to report on the contents of Hunter Biden’s laptop out of concerns that they were the result of a hack. As the conservative press latched on to (2) allegedly incriminating emails found on the computer in the final weeks of the 2020 campaign, more mainstream outlets did not join in a 2016-style frenzy over the material, and Facebook and Twitter limited distribution of a New York Post story about the laptop.

An analysis by The Post nearly two years later confirmed the authenticity of many of the emails on the laptop and found no evidence of a hack. [my annotation]

Note the two reasons alluded to in this passage, both of which show up in Murray’s claimed explanation for sitting on the JD Vance dossier. There were two concerns, according to the WaPo:

  1. Was the laptop “hacked”?
  2. Did the “allegedly incriminating emails” prove what the NYPost claimed they did?

Then, in the next paragraph, WaPo addresses just one of those two issues, whether the hard drive copied from a copy of a laptop, was hacked. WaPo claims, falsely, that the linked story describing the results of Jake Williams and Matt Green’s analysis “found no evidence of a hack.”

For starters, that’s a category error. This is a copy of a copy of a laptop, not the laptop itself. What their analysis attempted to assess was the authenticity of the emails on the laptop — but two different security researchers were only able to do so for a fraction of the emails. This analysis made no attempt to assess whether the stuff on the laptop was packaged up from authentic files (or from a combination of authentic and doctored files). Far more importantly, given details of Hunter’s cloud accounts, it did not assess whether people besides Hunter Biden had access his cloud data (evidence at his gun case described that not just his mistress, Zoe Kestan, accessed his cloud data, but his drug dealers accessed at least his bank account).

But it did find that the copy of a copy of a laptop lacked marks of reliability and did include files placed there by someone other than Hunter Biden.

Most of the data obtained by The Post lacks cryptographic features that would help experts make a reliable determination of authenticity, especially in a case where the original computer and its hard drive are not available for forensic examination. Other factors, such as emails that were only partially downloaded, also stymied the security experts’ efforts to verify content.

[snip]

In their examinations, Green and Williams found evidence that people other than Hunter Biden had accessed the drive and written files to it, both before and after the initial stories in the New York Post and long after the laptop itself had been turned over to the FBI.

[snip]

“From a forensics standpoint, it’s a disaster,” Williams said. (The Post is paying Williams for the professional services he provided. Green declined payment.)

[snip]

Neither expert reported finding evidence that individual emails or other files had been manipulated by hackers, but neither was able to rule out that possibility.

[snip]

Analysis was made significantly more difficult, both experts said, because the data had been handled repeatedly in a manner that deleted logs and other files that forensic experts use to establish a file’s authenticity.

“No evidence of tampering was discovered, but as noted throughout, several key pieces of evidence useful in discovering tampering were not available,” Williams’ reports concluded.

There are several details, disclosed subsequent to the story, that it lacks: It doesn’t talk about the ways the story John Paul Mac Isaac’s attorney told WaPo conflict with the story JPMI would tell in his book (one very significant conflict pertains to the date when JPMI reached out to the FBI). It doesn’t describe that JPMI himself disavowed some of the content on the Jack Maxey hard drive, the one shared with the WaPo. It doesn’t describe that Hunter has sued Garrett Ziegler and Rudy Giuliani for hacking him (the former survived Ziegler’s motion to dismiss; the latter was dismissed pending the end of Rudy’s bankruptcy; as far as I know, Hunter has not yet renewed the suit against Rudy given the imminent dismissal of Rudy’s bankruptcy). It doesn’t describe that in court filings, Abbe Lowell affirmatively claimed that the data on the laptop itself — not the copy! — had been compromised before being shared with the FBI.

Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac obtaining it.

WaPo relies on a two year old story that has been significantly preempted to claim that the copy of the copy of the laptop was not hacked. The story never made such a claim, and the claims it has made have been undermined since.

But there’s an even more telling aspect of WaPo’s self-satisfied claim that reporters gave up their rabid addiction for rat-fuckery after 2016. It doesn’t address whether the laptop subsequently became newsworthy.

There’s good reason for that: Because after the election, WaPo did embrace the laptop, even the doctored one they got from Maxey, as part of a years-long campaign of dick pic sniffing. Their lead dick pic sniffers, Matt Viser and Devlin Barrett, even made shit up when disgruntled IRS agents released details that raised questions about the integrity of the original copy. Since then, prosecutors themselves have described that the extraction of the copy of the laptop they received — the one whence all the data that sloppy reporters call “the laptop” came — is 62% bigger, measured in terms of pages, than the laptop itself. There are potentially innocent explanations for why the hard drive purporting to be a copy of the laptop would not match it, but those explanations would conflict with JPMI’s explanations for how he made the copy. And, scandalously, the FBI never made an index of the laptop, and Judge Maryellen Noreika allowed it to be used in the trial against Hunter without ever even assuring that the forensic reports on the extraction of the two devices matched what got certified to her in a court filing.

And WaPo is not alone in its continuing addiction to relying on a copy of a copy of a laptop with such provenance problems. Just yesterday, NYT’s Ken Vogel did a story that relied on the laptop which basically said, Hunter Biden asked the Commerce Department for help on Burisma but it blew him off (unsurprisingly, Vogel also struggles with the court filings on which he bases his news hook). Four years after Vogel’s chum Rudy Giuliani released the laptop, three weeks after Joe Biden dropped out, NYT is still reporting the absence of news in an 8-year old email as news, precisely the kind of attention suck that rat-fuckers seek when they provide stolen documents to people like Vogel.

Again, in my opinion, WaPo is right not to publish the JD Vance dossier, though that’s different than using it to assess whether there were big gaps in the vetting of Trump’s unpopular running mate.

But WaPo is telling fairy tales about whether mainstream outlets gave up their fondness for rat-fuckery.

They did not. For four years, they have been utterly addicted to the rat-fuckery of the laptop, to the exclusion of reporting on all the details that should raise cautions disclosed since then.

And as such, the decision not to embrace this rat-fuckery, however correct it might be, is a double standard.

After Serving as a Pawn for Russia, Roger Stone Became a Pwn of Iran

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Yeah, I know. I know.

I should have immediately written up the news — first reported by WaPo and then matched by CNN — that Roger Stone was hacked by suspected Iranian hackers and then his compromised account was used in an attempt to compromise a top Trump advisor.

Trump’s rat-fucker provided an interview in a story that WaPo appears to have subsequently buried, one in which the habitual liar claimed he was cooperating.

People familiar with the matter said the phishing attempt appears to have succeeded in compromising the communications of at least one person not formally connected to either campaign: Roger Stone, a longtime friend and adviser to Trump.

“I was informed by the authorities that a couple of my personal email accounts have been compromised,” Stone said in a brief interview. “I really don’t know more about it. And I’m cooperating. It’s all very strange.”

Stone’s account was used to send emails to the Trump campaign containing a link that, if clicked, could have allowed Iran to intercept the target’s other emails, the people familiar with the matter said.

His long-time lawyer, Grant Smith, confirmed Roger’s purported cooperation to CNN.

The FBI and other investigators probing the apparent hack-and-leak of Trump campaign documents, which Donald Trump has blamed on Iran, suspect that the hackers were able to compromise the personal email account of longtime Republican and Trump operative Roger Stone, multiple sources familiar with the matter told CNN.

The hackers used access to Stone’s email account to try to break into the account of a senior Trump campaign official as part of a persistent effort to access campaign networks, one of the sources said. The hacking incident, which occurred in June, set off a scramble in the Trump campaign, the FBI and Microsoft, which spotted the intrusion attempts, to contain the incident and to determine if there was a broader cyber threat from Iran.

Stone was informed by Microsoft and the FBI that his personal email was compromised by a “Foreign State Actor,” with the intention of utilizing the account to phish officials in the Trump campaign into opening a link that would give perpetrators access to that person’s computer, one of the sources familiar said.

“Mr. Stone was contacted about this matter by Microsoft and the FBI and continues to cooperate with both,” said Grant Smith, an attorney for the Republican operative. “Mr. Stone will have no further comment at this time.”

Maybe we’ll get around to uncertainty over whether Stone was the account whence, Microsoft describes, someone on the Trump team was targeted or the more interesting question of whether Iran, or someone else, is the source of the files shared with Politico, WaPo, and NYT. Thus far, it seems clear that three Biden-Harris people avoided being hacked and the Trump advisor may have avoided being hacked too.

It’s just Roger, so far.

Until we learn more (such as the source of the materials shared with the press, which Roger Stone wouldn’t have an obvious purpose to have), the involvement of Roger in this — the fact that Iran successfully pwned him, of all people — is interesting for a different reason.

If you ignore the whole Andrii Derkach information operation from 2020 (which, questions about Hunter Biden’s laptop aside, didn’t involve digital compromise), the most successful known operation from 2020 actually involved the Iranians.

As former Cybersecurity and Infrastructure Security Agency Director Chris Krebs (who has already weighed in that this Iranian attempt is serious) described it in his January 6 Committee, some Iranian actors pretending to be Proud Boys targeted Democrats and pushed them to vote for Trump.

So I give you an example. 2020, October 22nd and 23rd, a series of emails start popping up in people’s email in-boxes throughout Florida and elsewhere. The emails claim to be from the Proud Boys, and they are saying, hey — and they tend to be targeting Democrats and – registered Democrats at least. And so the claims say, hey, we know you’re a registered Democrat. You have to change your registration and vote for Trump.

If you don’t, we’re going to come after you and we’ll know who you voted for.

And so we saw these coming in. And we —you know, the way we would address — deal with this, with any of these themes or claims is we would just systematically reverse engineer the claim. So the claim here is that we will know who you voted for. So it’s the law of the land in all 50 States of a secret ballot. That’s kind of the magic of American elections.

And so that was the hook for us, to say, these sorts of emails are coming out. The –it’s actually untrue that anyone would ever know who you voted for unless you tell them.

There is a secret ballot. So disregard, this is disinfo.

And that was the crux of rumor control, which we launched that Monday or Tuesday of the week of 21, 22, whatever it was, October.

[snip]

Q Now, I don’t want you to get into certainly any classified information, but I do think you’ve spoken publicly or it was disclosed that it turns out it was a foreign actor involved with the Proud Boys emails.

A It was Iran. Yes. And we went from first discovery of that email 11 a.m., 2 noonish maybe, when reports came out on Tuesday to standing in FBI headquarters that evening, Wednesday evening about 7 p.m., attributing that attack to Iranian — that influence operation to Iranian actors.

In other words, in 2020, Iran used the threat of Roger Stone’s mob, the Proud Boys, to intimidate Democratic voters (precisely the danger that made Stone’s threats to both Randy Credico and Amy Berman Jackson so bad during the Mueller investigation and aftermath).

And then, of all the people to exploit as a way to get to Trump, Iran chooses Trump’s rat-fucker, the same guy with close ties to the Proud Boys?

Iran seems to have a thing for Roger and his mob.

Elon Musk’s Machine for Political Violence

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Last October, I wrote a post called “Elon Musk’s Machine for Fascism,” describing how Twitter had twice served Donald Trump’s electoral ambitions.

In 2016, trolls — including Don Jr — workshopped memes on a DM list and then used their reach to pressure MSM to adopt their narratives. In 2020, trolls — including Trump himself, his two sons, and other key advisors — used the platform to sow intentional disinformation about the election. Only by shutting down Trump’s account after January 6 was he prevented from further sowing violence in advance of Joe Biden’s inauguration.

Since then, Elon Musk has bought the platform and right wingers have successfully pushed to defund any effective civil society checks on the social media platform.

As I reflected last year, Musk’s purchase of Xitter seemed to be an effort to perfect on the 2016 and 2020 models.

By welcoming outright Nazis to the platform, though, he has undermined its ability to reach traditional journalists and normies, which made me hope that some of Xitter’s past utility to fascists might be weakened.

But in the last year, Musk and his far right allies have tested another model. First in Ireland and more recently and systematically in the UK, far right thugs like Tommy Robinson have used Xitter to enflame far right violence masquerading as organic anti-immigrant unrest.

Even before Musk got involved, high profile accounts on Xitter magnified disinformation from other platforms.

Much of the false information about the attack seemed to come from a website called Channel 3 Now, which generates video reports that look like mainstream news channels. But its video and its false claims about the name of the attacker might have stayed relatively obscure if they were not highlighted by larger accounts.

On X, users with considerable followings quickly shared that video and spread it across the site. And on other platforms such as TikTok – where videos can go viral quickly even if the accounts posting them do not have large followings, because of the app’s algorithm – they racked up hundreds of thousands of views. At some point, the false name of the attacker was a trending search on both TikTok and X, meaning that it showed to users who might otherwise have shown no interest in it at all.

But Musk did get involved personally, repeatedly stoking more violence.

Elon Musk just can’t help himself.

The billionaire X owner sparked fury in the British government this weekend after he responded to incendiary footage of the far-right disorder that’s sweeping the country by saying “civil war is inevitable.”

The post on X was roundly condemned by U.K. Prime Minister Keir Starmer’s office, which said there was “no justification” for Musk’s comments.

But Musk doubled, tripled, then quadrupled down after that dig. Responding to a statement from Starmer vowing his government would “not tolerate attacks on mosques or on Muslim communities,” the X boss effectively accused the British prime minister of wearing blinkers. “Shouldn’t you be concerned about attacks on all communities?” Policing of the unrest “does seem one-sided,” he offered in a third post.

He then branded Starmer “#twotierkeir” — riffing on a popular far-right talking point that British police treat disorder by white people differently to that by perpetrated by minorities. Justice Minister Heidi Alexander called Musk “deplorable.”

Musk has complained about British efforts to police content that, in the UK, is illegal.

And things would be worse in the US, because the laws against incitement are far more limited.

Plus, Xitter has twice fought back against legal process, one time on behalf of Donald Trump.

Xitter has also throttled pro-Kamala Harris accounts, even as Musk repeatedly boosts Trump.

Today, in advance of an “interview” with Musk and the roll-out by Trump’s sons of a new crypto currency scam and on the 7th anniversary of the Charlottesville riot, Donald Trump returned to Xitter.

Michael Sherwin Failed to Brief Merrick Garland on Trump’s Suspected Egyptian Payment

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WaPo significantly advances the story of the suspected $10 million Egyptian payment to Trump — including the role of China in it.

The investigation started when the CIA got a tip from a reliable informant that Egypt had paid Trump the money.

In early 2017, Justice Department officials were briefed on initial reports from the Central Intelligence Agency that Sisi had sought to send money to Trump.

The intelligence had come partly from a confidential informant who had previously provided useful information, according to people familiar with the matter.

That led to Mueller’s focus on Trump’s decision to inject the same amount into his campaign after meeting with Abdel Fattah El-Sisi in September 2016.

Trump repeatedly declined — until Oct. 28, roughly five weeks after the meeting with Sisi, when he announced the $10 million infusion.

As described, Mueller focused on Trump’s finances in 2016, but prohibited investigators from looking at his finances after he became President. Instead, they subpoenaed the Egyptian National Bank, which led to the extended legal fight. Materials finally provided by the bank showed a transfer from Shanghai…

The Research and Studies Center opened an account at the bank’s Heliopolis branch in November 2015, the bank’s records showed. In August 2016, the center opened a second account, this time in the bank’s Shanghai branch. Five days after that, a company that investigators believed was tied to an Egyptian oligarch initiated a transfer of $10 million into the center’s Shanghai account, records showed.

The transfer was held up, then cleared for deposit in Shanghai in December, the records showed. The same amount was transferred from that account to the center’s account at the Heliopolis branch shortly before the cash withdrawal there on Jan. 15, 2017.

Three days later, the center closed its account in Shanghai. Within 90 days, its account in Heliopolis was closed, too.

… And following that, a request from a likely Egyptian intelligence front to withdraw the same sum in cash.

A short handwritten letter dated Jan. 15, 2017, in which an organization called the Research and Studies Center asked that the bank “kindly withdraw a sum of US $9,998,000” from its Heliopolis branch, located about seven miles from Cairo International Airport. According to the bank records, employees assembled the money that same day, entirely in U.S. $100 bills, put it in two large bags and kept it in the bank manager’s office until two men associated with the account and two others came and took away the cash.

In summer 2019, after being spun under DC USAO, the FBI was asking for permission to subpoena records from Trump’s 2017 finances. But then Jessie Liu met with Bill Barr, reviewed the underlying CIA intelligence herself, and grew hesitant about further investigative steps.

Sometime after her June meetings with the FBI, Liu met with Barr to discuss the Egypt case. He urged her to personally review the underlying information from the CIA that had prompted the opening of the criminal investigation two years earlier, according to people with knowledge of the discussions.

[snip]

Sometime around September 2019, FBI agents and a supervisor from the field office presented what they considered an ultimatum to Liu: authorize getting Trump’s 2017 bank records or it wasn’t worth continuing to investigate, according to people later briefed on the exchange. Liu listened but turned them down; she said she wasn’t closing the case and was open to subpoenaing Trump’s records later on if agents turned up more compelling evidence to justify doing so, these people said.

After Barr replaced Liu with first Tim Shea and then Michael Sherwin, Sherwin shut down the investigation on June 7, 2020.

Sherwin, the only person quoted in the piece, taunted that Merrick Garland could have reopened the case.

In an interview with The Post, Sherwin said Biden administration appointees, including Attorney General Merrick Garland, who took over the department months later, could have relaunched the probe if they disagreed. “The case was closed without prejudice,” he said. “Anyone could have reopened the case the second I left that office.”

The case was not reopened.

Except, as the last paragraph of the story describes, partly amid the rush of cases in the wake of January 6, Garland and his top aides were never briefed on the case in their first year in office — which for Garland, who wasn’t sworn in until March 11, 2021, would be March 2022.

Garland, senior members of his team, and Biden’s new U.S. attorney in D.C. were never briefed on the Egypt investigation in their first year in office, one former and one current government official told The Post.

The Statute of Limitations expired on January 15, 2022.

There’s still at least one hole in this story.

The money was deposited in Shanghai in August 2016. That’s before the September meeting between al-Sisi and Trump. Though at a time when Trump’s people — including both George Papadophoulos, who played a key role in setting up the meeting with al-Sisi, and Walid Phares, who was investigated for ties to Middle Eastern intelligence — were negotiating a meeting with Russia, in London, in September 2016.

Papadopoulos communicated with Clovis and Walid Phares, another member of the foreign policy advisory team, about an offthe-record meeting between the Campaign and Russian government officials or with Papadopoulos’s other Russia connections, Mifsud and Timofeev.480 Papadopoulos also interacted directly with Clovis and Phares in connection with the summit of the Transatlantic Parliamentary Group on Counterterrorism (TAG), a group for which Phares was co-secretary general.481 On July 16, 2016, Papadopoulos attended the TAG summit in Washington, D.C., where he sat next to Clovis (as reflected in the photograph below).482

Although Clovis claimed to have no recollection of attending the TAG summit,483 Papadopoulos remembered discussing Russia and a foreign policy trip with Clovis and Phares during the event.484 Papadopoulos’s recollection is consistent with emails sent before and after the TAG summit. The pre-summit messages included a July 11, 2016 email in which Phares suggested meeting Papadopoulos the day after the summit to chat, 485 and a July 12 message in the same chain in which Phares advised Papadopoulos that other summit attendees “are very nervous about Russia. So be aware.”486 Ten days after the summit, Papadopoulos sent an email to Mifsud listing Phares and Clovis as other “participants” in a potential meeting at the London Academy of Diplomacy.487

Finally, Papadopoulos’s recollection is also consistent with handwritten notes from a journal at that time.488

[snip]

These are the notes that Papadopoulos professed to be unable to read when meeting with Mueller’s investigators.

This story is also silent about Russia’s role in convincing Egypt to withdraw a UN resolution against Israel after Trump intervened in December 2016.

Finally, recall that Erik Prince and Kyrill Dmitriev met in the Seychelles on January 11 and 12.

America’s Whimpering Democracy Is Trump’s Past, as Well as Future

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There was a bit of a kerfuffle yesterday in response to an Erik Wemple claim that the media has not shirked media coverage of the risk posed by Trump while focusing non-stop on Biden’s (but not Trump’s) age.

Wemple made a list — and given the prevalence of lefty columnists, not a particularly impressive one, once you look closely.

But it also betrays the degree to which journalists have the same blind spots I have noted in NYT’s series on the subject (which makes up 15 entries in Wemple’s list): they ignore or understate how much of this Trump did in his first term and continues to do it via his right wing allies in Congress.

Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

[snip]

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

[snip]

[T]hese pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

Such reporting will be most salient, I believe, if reports show voters the costs of such abuses of the judicial system have already had and are already having.

Even as the kerfuffle was unrolling, Rosa Brooks published a piece in The Bulwark describing the lessons from a series of five nonpartisan simulations on how American democracy might fare if Trump wins in November.

The simulations showed that the risk Trump poses isn’t necessarily the immediate totalitarianism or civil war liberals sometimes raise, but instead targeted persecution against those who speak up.

The exercises produced some “good news”: None of the simulations devolved into mass violence or civil conflict, and Team Trump found it difficult to fully execute its most ambitious plans. For instance, in one of our exercises, Trump’s efforts to detain millions of undocumented migrants floundered; the money and infrastructure for such a massive operation proved too challenging.

[snip]

High-profile nonprofit groups are undergoing IRS audits, forcing their senior staff to spend most of their time huddled with accountants and lawyers. More university presidents have resigned in the face of investigations, audits, and threats to yank federal funding over curricula and the actions of student protests. Meanwhile, a number of high-profile journalists are the targets of leak investigations. The owners of several major media outlets are under investigation for specious criminal tax code violations, and the FCC is considering revoking the broadcast licenses of a dozen television stations. Liz Cheney, Adam Schiff, and retired Gen. Mark Milley are under investigation for allegedly mishandling classified materials.

The nation’s streets are largely peaceful. But around the country, numerous civil servants, reporters, teachers, librarians, election officials, and other community leaders are being doxxed and threatened.

You can imagine how this unfolds. Most people will see the writing on the wall: Speak out, and life becomes unpleasant. Your address and children’s names will be posted on social media. You’ll get a nasty letter from the IRS. Perhaps your brother’s undocumented girlfriend will go to work one day and never come home, and you won’t know if she’s been detained or deported. Your pregnant niece might be stopped by police as she drives from Texas to New Mexico, and grilled about whether she’s heading to an abortion clinic. Maybe the FBI and Homeland Security will use undercover agents—or even government surveillance capabilities—to spy on organizations from school boards to church groups, in search of “illegals,” “Christian-hating communists,” the “woke,” and other “vermin.”

The chilling effect on our politics would be intense. Ordinary citizens would self-censor. Many federal, state, and local leaders, rightly worried about the effects on themselves and their families, will quietly step down from their roles.

Definitely read the piece. As you do, though, consider the ways that this, too, is a story of Trump’s past and present, not just his future.

Just yesterday, for example, FBI’s Deputy Direct Paul Abbate said that he “absolutely did not” sign off on the settlement of Peter Strzok and Lisa Page’s lawsuits and “would never sign off on something like that.”

The allegations in the Privacy Act part of the complaint — the only part included in the settlement — show that before the misconduct allegations against Peter Strzok had been resolved, someone shared his texts with the White House, which in turn got leaked to the press before Sarah Isgur released them en masse, with Rod Rosenstein’s approval.

59. Between late July and December 2017, someone from the Department of Justice alerted the White House to the existence of these texts and, at least, their general content. On information and belief, officials in the White House, in turn, began to contact members of the news media about the texts as a means to try to undermine the Special Counsel’s investigation.

60. No later than December 2, 2017, at least two news organizations printed stories including characterizations of the contents of some of Special Agent Strzok’s texts.

[snip]

62. On December 12, 2017, DOJ willfully and intentionally disclosed to numerous news outlets approximately 375 text messages to, from, and about Special Agent Strzok. In a press release, DOJ called this act a “public release” of the messages.

Years ago, I was told this was a clear violation of the Privacy Act. Having gone through discovery, DOJ appears to agree.

By saying he would never sign a settlement with someone targeted in violation of the law, Abbate was (wittingly or not) stating an unwillingness to make things right after the government violates the rights of a long-valued FBI employee. And Abbate has to know that there are plenty of right wing agents who never got disciplined for sending pro-Trump texts on their phones, including the agents who handled one of the informants targeting the Clinton Foundation.

Republicans threw a similar tizzy fit after DOJ settled Andrew McCabe’s lawsuit for a similar violation of his rights — in that case, of his due process rights. And in McCabe’s case, granting McCabe’s due process would likely have revealed that the allegations he willfully lied about his role in a story that exposed the investigation into the Clinton Foundation were unproven.

The time to stand up to the kind of individualized targeting that Trump has long used is now, was last year, was seven years ago, when the extended campaign to turn Strzok and Page into the face of the Deep State first began.

Waiting to learn the outcome of the election is a cop out.

The time to catalog the damage Trump has already done by the kind of treatment the Bulwark projects in the future is now. All the more so given that its anonymous participants, described to include “former senior officials from President Trump’s first administration, along with former senators and members of Congress,” surely include a number of people who’ve received this treatment. If the way to combat Trump involves solidarity to prevent this isolating doxxing, then such a group is precisely the kind of group that should set an example.

LOLGOP and I are working on a podcast episode that talks about all the people at the FBI that Trump targeted: in addition to Strzok and Page, McCabe and Jim Comey, every person mentioned in the Carter Page IG Report, a number of key witnesses in the Durham investigation, often leveraged to cultivate the testimony Durham needed to sustain his conspiracy theory. That retaliation did real damage to the FBI’s expertise on Russia.

But it has continued even since Trump left office. After first being investigated in the wake of the IG Report, a top Russian analyst, Brian Auten, remains a target because he tracked Russia efforts to influence the 2020 election. Laura Dehmlow — then a unit chief in FBI’s Foreign Influence Task Force and now the Deputy Director of the National Counterintelligence Center, was bullied because she didn’t come out and say that the FBI had obtained a laptop attributed to Hunter Biden from a computer repairman (which remains inconclusive regarding any Russian influence). Tim Thibault, who in 2016 was one of the people who predicated investigations of the Clinton Foundation, was targeted in part because he made the decision — at the request of FBI agents trying to preserve the integrity of the Hunter Biden investigation — to shut down Peter Schweizer as an informant. Elvis Chan, long one of the most important FBI agents in fighting Russian hacking, was misrepresented as part of the Twitter Files, and ever since, the House GOP has been demanding he sit for a deposition either represented by his personal lawyer or the FBI’s lawyer.

Other members of the “Deep State” that Trump or his flunkies have targeted include:

  • The 51 former spooks who signed a letter stating that the release of the Hunter Biden laptop before the 2020 elections “has the earmarks of a Russian information operation”
  • Witnesses at either of Trump’s impeachments
  • January 6 Committee witnesses and members
  • Capitol Hill Police who testified in January 6 trials
  • Witnesses in the Durham investigation
  • Former Trump officials who’ve spoken out against Trump (again, these likely include some participants in Bulwark’s simulations)
  • Members of the Hunter Biden investigative team, including those who were engaged in the more aggressive targeting of him
  • Every judge, prosecutor, and identified FBI agent who has investigated Trump (note: Aileen Cannon was also targeted)
  • Judges who’ve overseen January 6 trials or those of Trump’s associates
  • Those who didn’t support Jim Jordan as speaker

This has a noticeable effect. Not only does Abbate (along with Chris Wray) cow before Congress rather than explain that Trump’s Administration violated the law, which has repercussions, but it led the FBI to hesitate before going after Trump and his people both before January 6 and during the stolen documents case.

There are those outside of government, too.

A sustained campaign to shut down efforts, both within and outside social media companies, to limit mis- and disinformation has led many programs and experts to quit, largely after sustained doxing and disinformation campaigns.

Perhaps most alarmingly, Trump and his mob have targeted election administrators around the country, both prominent and not. Even if Kamala Harris wins more votes than Trump in November, there are known localities and states where there’s real question whether election denying voting officials will certify the vote. Patrick Byrne has even started issuing death threats against those prosecuting Tina Peters for tampering with election equipment back in 2020.

This is not just about loyalty. This is not just about cowing law enforcement. This is not just retribution — though that serves as cover.

Particularly taking account of the election workers targeted in service of Trump’s Big Lie, this must be understood as systematic: an attack on particular institutions and norms of liberal society: the rule of law, elections, and truth.

We don’t have the luxury of waiting until after November to start defanging the right wing’s stochastic terrorism. That’s true, because they’ll be using it to stoke fear leading up to the election. That’s true because Jim Jordan still has three months wielding a gavel to elicit lynching threats. But it’s also true because the guy managing the FBI is so afraid of Congress that he’s unwilling to say that people selectively targeted for such treatment by Donald Trump are entitled to due process.

President Biden’s Address to the Nation

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

In case you missed his remarks broadcast and streamed Wednesday evening, here is a video and a transcript.

Alternate source: https://www.c-span.org/video/?537306-1/president-biden-addresses-nation-decision-drop-2024-race
(Caveat: the transcript at C-SPAN is awful)

Transcript:

My fellow Americans, I’m speaking to you tonight from behind the Resolute Desk in the Oval Office. In this sacred space, I’m surrounded by portraits of extraordinary American presidents. Thomas Jefferson wrote the immortal words that guide this nation. George Washington showed us presidents are not kings. Abraham Lincoln implored us to reject malice. Franklin Roosevelt inspired us to reject fear.

I revere this office, but I love my country more. It’s been the honor of my life to serve as your president. But in the defense of democracy, which is at stake, I think it’s more important than any title. I draw strength and find joy in working for the American people. But this sacred task of perfecting our union is not about me, it’s about you. Your families, your futures.

It’s about we the people. And we can never forget that. And I never have. I’ve made it clear that I believe America is at an inflection point. On those rare moments in history, when the decisions we make now determine our fate of our nation and the world for decades to come, America is going to have to choose between moving forward or backward, between hope and hate, between unity and division.

We have to decide: Do we still believe in honesty, decency, respect, freedom, justice and democracy. In this moment, we can see those we disagree with not as enemies but as, I mean, fellow Americans—can we do that? Does character in public life still matter? I believe you know the answer to these questions because I know you the American people, and I know this: We are a great nation because we are a good people. When you elected me to this office, I promised to always level with you, to tell you the truth. And the truth, the sacred cause of this country, is larger than any one of us. Those of us who cherish that cause cherish it so much, the cause of American democracy itself. We must unite to protect it.

In recent weeks, it has become clear to me that I need to unite my party in this critical endeavor. I believe my record as president, my leadership in the world, my vision for America’s future, all merited a second term. But nothing, nothing can come in the way of saving our democracy. That includes personal ambition.

So I’ve decided the best way forward is to pass the torch to a new generation. It’s the best way to unite our nation. I know there was a time and a place for long years of experience in public life. There’s also a time and a place for new voices, fresh voices, yes, younger voices. And that time and place is now.

Over the next six months, I will be focused on doing my job as president. That means I will continue to lower costs for hard-working families, grow our economy. I will keep defending our personal freedoms and civil rights, from the right to vote to the right to choose. I will keep calling out hate and extremism, making it clear there is no place, no place in America for political violence or any violence ever, period. I’m going to keep speaking out to protect our kids from gun violence, our planet from climate crisis as an existential threat.

I will keep fighting for my Cancer Moonshot, so we can end cancer as we know it because we can do it. I’m going to call for Supreme Court reform because this is critical to our democracy—Supreme Court reform. You know, I will keep working to ensure American remains strong, secure and the leader of the free world.

I’m the first president of this century to report to the American people that the United States is not at war anywhere in the world. We will keep rallying a coalition of proud nations to stop Putin from taking over Ukraine and doing more damage. We’ll keep NATO stronger, and I will make it more powerful and more united than any time in all of our history. I will keep doing the same for our allies in the Pacific. You know, when I came to the office, the conventional wisdom was that China would inevitably pass, surpass the United States.

That’s not the case anymore. And I’m going to keep working to end the war in Gaza, bring home all the hostages and bring peace and security to the Middle East and end this war. We are also working around the clock to bring home Americans being unjustly detained all around the world.

You know, we’ve come so far since my inauguration. On that day, I told you as I stood in that winter—we are stood in a winter of peril and winter of possibilities. Peril and possibilities. We are in the group of, we were in the group of the worse pandemic in the century. The worst economic crisis since the Great Depression. The worst attack on our democracy since the Civil War. We came together as Americans. We got through it. We emerged stronger, more prosperous and more secure.

Today we have the strongest economy in the world, creating nearly 16 million new jobs—a record. Wages are up, inflation continues to come down, the racial wealth gap is the lowest it’s been in 20 years. We are literally rebuilding our entire nation—urban, suburban and rural and tribal communities. Manufacturing has come back to America. We are leading the world again in chips and science and innovation. We finally beat Big Pharma after all these years to lower the cost of prescription drugs for seniors.

And I’m going to keep fighting to make sure we lower the cost for everyone, not just seniors. More people have health care today in America than ever before. I signed one of the most significant laws helping millions of veterans and their families who were exposed to toxic materials. You know, most significant climate law ever, ever in the history of the world. The first major gun safety law in 30 years.

And today, the violent crime rate is at a 50-year low. We are also securing our border. Border crossings are lower today than when the previous administration left office. I’ve kept my commitment to appoint the first Black woman to the Supreme Court of the United States of America. I also kept my commitment to have an administration that looks like America and be a president for all Americans. That’s what I’ve done.

I ran for president four years ago because I believed and still do that the soul of America was at stake. The very nature of who we are was at stake. That is still the case. America is an idea. An idea stronger than any army, bigger than any ocean, more powerful than any dictator or tyrant. It’s the most powerful idea in the history of the world. That idea is that we hold these truths to be self-evident.

We are all created equal, endowed by our creator with certain inalienable rights: life, liberty, the pursuit of happiness. We’ve never fully lived up to it—to this sacred idea—but we’ve never walked away from it either. And I do not believe the American people will walk away from it now.

In just a few months, the American people will choose the course of America’s future. I made my choice. I’ve made my views known. I would like to thank our great vice president, Kamala Harris. She is experienced, she is tough, she is capable. She’s been an incredible partner to me and a leader for our country.

Now the choice is up to you, the American people. When you make that choice, remember the words of Benjamin Franklin hanging on my wall here in the Oval Office, alongside the busts of Dr. King and Rosa Parks and Cesar Chavez.

When Ben Franklin was asked, as he emerged from the convention going on, whether the founders have given America a monarchy or a republic, Franklin’s response was: “A republic, if you can keep it.” A republic, if you can keep it. Whether we keep our republic is now in your hands. My fellow Americans, it’s been the privilege of my life to serve this nation for over 50 years.

Nowhere else on Earth could a kid with a stutter from modest beginnings in Scranton, Pennsylvania, and in Claymont, Delaware, one day sit behind the Resolute Desk in the Oval Office as the president of the United States, but here I am.

That’s what’s so special about America. We are a nation of promise and possibilities. Of dreamers and doers. Of ordinary Americans doing extraordinary things. I’ve given my heart and my soul to our nation, like so many others. And I’ve been blessed a million times in return with the love and support of the American people. I hope you have some idea how grateful I am to all of you.

The great thing about America is, here kings and dictators do not rule—the people do. History is in your hands. The power’s in your hands. The idea of America lies in your hands. You just have to keep faith—keep the faith—and remember who we are. We are the United States of America, and there are simply nothing, nothing beyond our capacity when we do it together. So let’s act together, preserve our democracy. God bless you all and may God protect our troops. Thank you.

~ ~ ~

This is an open thread.

Boiled Frog Journalism: Is Trump an Agent of Saudi Arabia, and Other Pressing Questions Buried under Biden’s Age

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A jury found Robert Menendez guilty on all charges yesterday, including those alleging he accepted payments from Egypt and Qatar (I didn’t follow the trial closely enough to figure out which country ultimately provided the gold). The verdict marks DOJ’s first successful conviction under 18 USC 219, basically, working for a foreign country while serving as a member of Congress.

Henry Cuellar faces the same charge.

While the RNC largely overshadowed the verdict, Chuck Schumer, Cory Booker, and Governor Phil Murphy have all called on Menendez to step down.

The reasons why he should resign seem obvious: You can’t continue to serve the people of New Jersey after a jury determined you were actually using your position of power to serve two wealthy foreign countries.

Is Trump a Saudi foreign agent?

And yet we are two days into Trump’s nomination party, and no one has asked — much less answered — whether Donald Trump is a business partner, paid foreign agent, or merely an employee of Saudi Arabia.

This is not a frivolous question. Since Trump left office, his family has received millions in four known deals from the Saudis:

  • A deal to host LIV golf tournaments. Forbes recently reported that Trump Organization made less than $800K for about half the tournaments it has hosted. But Trump’s role in the scheme has given credibility to an influence-peddling scheme that aims to supplant the PGA’s influence. When Vivek Ramaswamy learned that two consultants to his campaign were simultaneously working for LIV, he forced them to resign to avoid the worries of influence-peddling. Yet Trump has continued to host the Saudis at his properties.
  • A $2 billion investment in Jared Kushner’s private equity firm, in spite of the fact that analysts raised many concerns about the investment, including that he was charging too much and had no experience.
  • A deal to brand a property in Oman slated to open in 2028, which has already brought Trump Organization $5 million. The government of Oman is a key partner in the deal, signed with a huge Saudi construction firm.
  • A newly-announced deal with the same construction firm involved in the Oman deal, this time to brand a Trump Tower in Jeddah.

These Saudi deals come on top of Trump’s testimony that Turnberry golf course and his Bedford property couldn’t be overvalued because some Saudi would be willing to overpay for them.

But I believe I could sell that LIV Golf for a fortune, Saudi Arabia. I believe I could sell that to a lot of people for numbers that would be astronomical because it is like — very much like owning a great painting.

[snip]

I just felt when I saw that, I thought it was high. But I could see it — as a whole, I could see it if this were s0ld to one buyer from Saudi Arabia — I believe it’s the best house in the State of New York.

And while Eric Trump, not his dad, is running the company, Eric also has a role in the campaign and his spouse Lara has taken over the entire GOP.

Trump never fulfilled the promises to distance himself from his companies in the first term. A very partial review of Trump Organization financial records show the company received over $600K from the Saudis during his first term. As far as I’m aware, no one has even asked this time around.

Which means as things stand, Trump would be the sole beneficiary of payments from key Saudi investors if he became President again. Trump would be, at the very least, the beneficiary of a business deal with the Saudis, as president.

Admittedly, under the Supreme Court’s latest ruling on gratuities, it might be legal for Trump to get a bunch of swank branding deals as appreciation for launder Saudi Arabia’s reputation (one of the things for which Menendez was just convicted).

But that doesn’t mean it should be ignored, politically. It doesn’t mean American voters shouldn’t know these details. It doesn’t mean journalists (besides NYT’s Eric Lipton, whose most recent story on this was buried on page A7) shouldn’t demand answers.

What deals has Trump made with Putin and/or Orbán?

At some point at the RNC, Don Jr claimed that his Daddy would get poor coverage from real journalists because “they lied about Russia Russia Russia.”

Only, they didn’t.

In guilty pleas, Trump’s people confessed that they were the ones lying. George Papadopoulos lied to hide when he learned of the Russian hack-and-leak operation. Mike Flynn lied to hide his efforts to undermine Barack Obama’s foreign policy with Russia. Micahel Cohen lied to hide his contact with the Kremlin during the campaign in pursuit of the kind of Trump Tower deal Trump has since inked with the Saudis.

Don Jr was spared charges, in part, because he’s too dumb to be expected to know he shouldn’t accept campaign dirt from Russian nationals.

Robert Mueller found that Trump’s campaign manager briefed someone Treasury has since labeled a Russian spy, Konstantin Kilimnik, on his plan to win the Rust Belt, even while discussing a deal to carve up Ukraine and get tens of millions in benefits. Kilimnik passed on polling data and the campaign strategy to Russian spies. Amy Berman Jackson ruled that Paul Manafort lied to hide that.

At the time the FBI obtained Roger Stone’s cell site location in August 2018, they had reason to believe he had gotten advance notice of both the dcleaks and the Guccifer 2.0 releases. Stone had multiple contacts with Trump about the releases and prosecutors hoped to obtain a notebook where Stone documented all of those conversations. A jury found that Stone lied to hide whence he learned all this.

Trump pardoned all but Cohen and Jr for the lies they told to hide what really happened with Russia. And we still don’t know why the clemency for Roger Stone Trump stashed in his desk drawer had a Secret document on Macron associated with it.

And Trump has only gotten more shameless since. In 2019, during his impeachment for extorting Volodymyr Zelensky to investigate Joe Biden and his kid, Trump was warned that among the Ukrainians from whom Rudy Giuliani was soliciting dirt on the Bidens was at least one Russian agent, Andrii Derkach.

Trump did nothing to stop Rudy from sidling up to a Russian agent. And when Rudy came back, Bill Barr set up a side channel to ingest that dirt — a side channel the resulted in an FBI informant with self-professed ties to Russian spies attempting to frame Joe Biden for bribery, an attempt to frame Biden that likely goes a long way to explain why the plea deal against Hunter Biden collapsed.

Once upon a time, it was a big deal that Trump refused to let an activist make the RNC platform’s defense of Ukraine more hawkish.

Now, however, Trump no longer hides that he’s willing to let Putin dismember Ukraine. He welcomed Viktor Orbán’s pitch of a plan to do just that — but there has been no readout from Trump’s side of what happened. Orbán, however, has told other EU nations that Trump will moved for “peace” immediately after being elected — a replay of what Flynn lied to cover up in 2017 — largely by withdrawing US support for Ukraine.

In the past, Trump has gone even further than this, suggesting he’ll do nothing as Putin invades NATO states.

Meanwhile, JD Vance is, if anything, even more pro-Russian than Trump, as are some of the Silicon Valley oligarchs who now back Trump’s campaign since the Vance pick.

Trump’s plan of capitulation to Russia will go a long way to ending the Western rules-based order, the greatest wish of Putin and Xi Jinpeng.

And thus far we know just one of the things that Russia seems to be doing to help Trump’s campaign: detaining WSJ reporter Evan Gershkovich until Trump gets elected, just as Iran held onto hostages to help Reagan get elected. Avril Haines recently made clear Russia is planning on helping in other ways as well.

That’s how “Russia Russia Russia” has worked. It’s a shameless lie that Mueller found nothing, a lie built off years of propaganda. Indeed, Trump’s willing acceptance — or, in Rudy’s case, outright solicitation — of Russia’s help to get elected has only gotten more brazen. Yet rather than call Don Jr on his “Russia Russia Russia” lie, reporters simply let the pressing question of whether Trump will end the alliance of democracies in a second term go unasked.

What happened to the missing classified documents?

Amid the focus on Aileen Cannon’s stall then dismissal of Trump’s stolen documents charges, something has been missed: There appear to be documents missing. Here’s what we know:

  • According to the indictment that Judge Cannon just threw out, after Trump tricked Evan Corcoran into searching only about half the boxes containing stolen documents, he flew to Bedminster with “several” of the boxes he had excluded from the search.
  • In July 2022, Trump and Walt Nauta snuck back to Mar-a-Lago from Bedminster — to check on the boxes, one witness told Jack Smith.
  • When the FBI searched Mar-a-Lago on August 8, 2022, they failed to search a closet in his bedroom to which he had added a new lock.
  • Several searches overseen by Tim Parlatore found no new documents, though he did find a new classified document folder.

Given FBI’s failure to do a complete search adn Parlatore’s failure to find documents at Bedminster, the most likely way to learn what happened to them would be to get Walt Nauta to flip, something that, as I suggested here, his indictment might normally have done. But (correct, as it turned out) expectations that the prosecution would go away kept Nauta from cooperating.

And as a result, we have literally no idea how many documents Trump managed to withhold from the FBI’s search, or what he did with them.

The continued focus on Joe Biden’s three year seniority over Trump

Again, this kind of betrayal of America once mattered in Trump’s campaigns.

No longer.

It’s not happening because journalists are so cowardly they can be cowed with a mere “Russia Russia Russia” chant.

And it’s not happening because journalists have lost all sense of proportion — and for many of them, all sense of public good.

Journalists are making much of a confrontation between Jason Crow and Biden, related by Julia Ioffe, in which Biden insisted he had been great on foreign policy.

The campaign did not, however, dispute this next part, about Crow and his Bronze Star. In a video of the Zoom that I was able to view, you can hear Biden chastising Crow, who asked about the importance of national security to voters. “First of all, I think you’re dead wrong on national security,” the president says, the emotion at times garbling his words. “You saw what happened recently in terms of the meeting we had with NATO. I put NATO together. Name me a foreign leader who thinks I’m not the most effective leader in the world on foreign policy. Tell me! Tell me who the hell that is! Tell me who put NATO back together! Tell me who enlarged NATO, tell me who did the Pacific basin! Tell me who did something that you’ve never done with your Bronze Star like my son—and I’m proud of your leadership, but guess what, what’s happening, we’ve got Korea and Japan working together, I put Aukus together, anyway! … Things are in chaos, and I’m bringing some order to it. And again, find me a world leader who’s an ally of ours who doesn’t think I’m the most respected person they’ve ever—”

“It’s not breaking through, Mr. President,” said Crow, “to our voters.”

“You oughta talk about it!” Biden shot back, listing his accomplishments yet again. “On national security, nobody has been a better president than I’ve been. Name me one. Name me one! So I don’t want to hear that crap!”

It’s another instance where Biden responds stubbornly when Democrats try to push the president to drop out of the race. And that’s why reporters are gleefully dunking on Biden’s comments.

But it’s also an instance where Biden is making a really good point: He has restored America’s alliances to what they were before Trump destroyed them.

And the press is only telling that story — and doesn’t even realize that they are only telling that story — as part of their singular obsession with Biden’s age.

It’s a confession, really, that they have abdicated any concern for the kind of accomplishments of which Biden is justifiably bragging (ignoring Gaza). They have been bullied out of covering any of Trump’s glaring betrayals of the country the leadership of which he wants to monetize.

Trump might literally be an agent of a foreign power — just like Robert Menendez has been adjudged — and this mob calling themselves journalists would exhibit the least interest, much less persistent concern. Journalists don’t even care that both of Trump’s most suspect foreign allegiances involve the exploitation of journalists for political gain, first Jamal Khashoggi and then Gershkovich. Journalists have ignored that recent history, even after he picked Vance, someone who formally asked Merrick Garland to criminally investigate Robert Kagan (a neocon whom Vance called left wing) for inciting insurrection because he discussed liberal states resisting Trump in a second term.

Trump might literally sell out the next journalist who opposes him to be chopped up by some foreign dictator. And yet the press corps seems not to give a rat’s ass.

Because Joe Biden is three years older than Donald Trump.

Aileen Cannon Makes Clarence Thomas’ Calvinball Newly Significant

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Aileen Cannon’s order throwing out the stolen documents prosecution may make some Calvinball Justice Thomas engaged in more important in days ahead.

Cannon actually didn’t give Trump his preferred outcome: a ruling that Jack Smith would have had to be senate-confirmed and also that he was funded improperly. Aside from the timing, neither is this outcome one (I imagine) that Trump would prefer over a referral of Jack Smith for investigation or a dismissal on Selective Prosecution or spoilation or some other claim that would allow Trump to claim he was victimized.

Rather, she adopted a second part of Trump’s argument, that Merrick Garland didn’t have the legal authority to appoint a Special Counsel, of any sort, whether someone from outside the Department or someone (like David Weiss) who was already part of it. She punted on most of the question on whether a Special Counsel is a superior officer requiring Senate confirmation or an inferior one not requiring it.

Cannon’s argument lifts directly from Clarence Thomas’ concurrence, which she cites three times (though that is, in my opinion, by no means her most interesting citation). Thomas argues that the four statutes that Garland cited in his appointment of Jack Smith are insufficient to authorize the appointment of a Special Counsel.

We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.

It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have.3 See supra, at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).

None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose. See, e.g., 43 Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. (Emphasis added.) As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. See Lucia, 585 U. S., at 254–255 (opinion of THOMAS, J.) (considering the meaning of “officer”). Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).4

To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.

4Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so.

Cannon takes Thomas’ treatment of Nixon as a “passing reference” as invitation to make truly audacious analysis of it as dicta.

D. As dictum, Nixon’s statement is unpersuasive.

Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out, thoroughly reasoned, and carefully articulated” is due near-precedential weight. Schwab, 451 F.3d at 1325–26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound by Supreme Court dictum where it “is of recent vintage and not enfeebled by any subsequent statement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” Id. at 1325–26. For these reasons, the Court concludes it is not entitled to considerable weight.

She then reviews the cited statutes one by one and deems them all insufficient to authorize a Special Counsel, with special focus on 28 USC 515 and (because Garland cited it for the first time) 533.

The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.

[snip]

Section 515(b), read plainly, is a logistics-oriented statute that gives technical and procedural content to the position of already-“retained” “special attorneys” or “special assistants” within DOJ. It specifies that those attorneys—again already retained in the past sense—shall be “commissioned,” that is, designated, or entrusted/tasked, to assist in litigation (more on “commissioned” below). Section 515(b) then provides that those already-retained special attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give the Attorney General independent power to appoint officers like Special Counsel Smith—or anyone else, for that matter.

Cannon twice notes her order applies only to the indictment before her (perhaps the only moment of judicial modesty in an otherwise hubristic opinion).

The instant Superseding Indictment—and the only indictment at issue in this Order—arises from the latter investigation.

[snip]

The effect of this Order is confined to this proceeding.

This is obvious — but it is also a way of saying that if the Eleventh backs this ruling, it would set up a circuit split with the DC rulings that she dismisses in cursory fashion.

Effectively, this represents one Leonard Leo darling, Cannon, dropping all her other means of stalling the prosecution for Trump, to act on seeming instructions from a more senior Leonard Leo darling.

A bunch of lawyers will dispute Cannon’s recitation of Thomas’ reading of the law. Indeed, Neal Katyal has already done so in an op-ed for the NYT.

Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.

Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”

Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.

I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.

This legal dispute will be aired in the Eleventh in Jack Smith’s promised appeal.

Katyal’s more salient point is in describing where this leads if Trump’s Supreme Court gets to review Special Counsel appointments at some time after the November election will determine whether the rule applies to Trump or to a normal president.

Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.

That’s the kind of explanation, after all, why Cannon would drop all her other obstruction and pursue this angle: to ensure that a second Donald Trump administration could not be threatened with even the possibility of a Special Counsel.

But I’m interested in the way Thomas ended his concurrence, to an opinion about a prosecution involving official acts of a then-president. It is not dissimilar to the way John Roberts closed his majority opinion, by claiming this was all about separation of powers.

Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.

Here, the Executive is sharply constrained, even in its prosecutorial function, by guardrails Congress has given it.

I’m not sure this is consistent with this language from Roberts’ opinion, which reads maximalist authority for presidents to conduct criminal investigations (and cites to Nixon, with its assertion of great deference on Article II issues).

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]

That is, Roberts has to read presidential authority to intervene in DOJ’s prosecutorial functions in order to sanction Trump’s plan to demand DOJ’s participation in his fraud. But then Thomas argues that the president can only do so if Congress has given him authority.

Which is it?

Aileen Cannon Unwound the Stolen Documents Prosecution Back to November 2022

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There’s a detail of Judge Cannon’s order throwing out the stolen documents case that people seem to be missing.

She unwound the prosecution back to the time when Jack Smith took it over from when Jay Bratt had the lead.

Here, as in Lucia, the appropriate remedy is invalidation of the officer’s ultra vires acts. Since November 2022, Special Counsel Smith has been exercising “power that [he] did not lawfully possess.” Collins, 594 U.S. at 258. All actions that flowed from his defective appointment—including his seeking of the Superseding Indictment on which this proceeding currently hinges [ECF No. 85]—were unlawful exercises of executive power. Because Special Counsel Smith “cannot wield executive power except as Article II provides,” his “[a]ttempts to do so are void” and must be unwound. Id. at 283 (Gorsuch, J., concurring). Defendants advance this very argument: “any actions taken by Smith are ultra vires and the Superseding Indictment must be dismissed” [ECF No. 326 p. 9]. And the Court sees no alternative course to cure the unconstitutional problem.

There are a lot of people saying that DOJ can just charge the 18 USC 793 charges in SDFL or charge obstruction in either DC or SDFL.

But they can only do so relying on evidence obtained prior to Smith’s appointment. Some key things they got after that?

  • Evan Corcoran’s testimony
  • Yuscil Taveras’ cooperation
  • Some, but not all, of the surveillance footage
  • Testimony from Mark Meadows’ ghost writers, reflecting Trump’s knowledge that he had not declassified the Iran document

Probably, a simple obstruction charge limited to Trump’s refusal to respond to the subpoena might survive (though such a case would be stronger with Corcoran’s testimony). But there is no way they could charge the stolen documents case without recreating some of this investigation.

Update: Jack Smith has announced he will appeal.

Aileen Cannon Dismisses Stolen Documents Case Based on Special Counsel Appointment

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Here’s the 93-page opinion, which I’m still reading.

Procedurally, this may actually not help Trump in the way he’d like (because DOJ has the option of appealing it or having a US Attorney charge Trump).

But it’s also hilarious, since Aileen Cannon has been treating herself like an Appellate Judge that she hasn’t been confirmed to be.

Update: One thing Cannon appears upset about is Merrick Garland’s invocation of Section 533, which appoints FBI-like figures.

Special Counsel Smith argues that Section 533(1) confers on the Attorney General the authority to appoint special counsels, specifically, constitutional officers wielding the “full power and independent authority . . . of any United States Attorney.” 28 C.F.R. § 600.6. After careful review, the Court is convinced that it does not. Congress “does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). Special Counsel  Smith’s interpretation would shoehorn appointment authority for United States Attorney-equivalents into a statute that permits the hiring of FBI law enforcement personnel. Such a reading is unsupported by Section 533’s plain language and statutory context; inconsistent with Congress’s usual legislative practice; and threatens to undermine the “basic separation-of-powers principles” that “give life and content” to the Appointments Clause. Morrison, 487 U.S. at 715 (Scalia, J., dissenting). The Court explains below.

33 Order No. 5730-2023 (appointing David C. Weiss); Order No. 5588-2023 (appointing Robert K. Hur).

That is her only mention of Robert Hur, whose appointment would be unconstitutional under her theory as well. (I’m still trying to figure out whether Cannon will help Hunter Biden go free, too.)

Update: Okay, I’ve read the thing.

It’s hilarious.

It’s hilarious, because it doesn’t create any delay that Cannon was not pursuing anyway. Indeed, Jack Smith could immediately appeal this and try to get her tossed, so it may hasten things (unless Trump wins!).

It’s hilarious because it is unbelievably hubristic. The only credible future for Judge Cannon now is Trump’s first SCOTUS appointment in a second term.

It’s hilarious because the way she did this, if it were upheld (not an impossibility given how nutty SCOTUS has gotten), it would be even more useful for Hunter Biden than Donald Trump (especially if Trump didn’t win reelection), because the statutes of limitation on Hunter’s alleged crimes have started to expire.

Update: Jack Smith has announced he will appeal.