Fridays with Nicole Sandler
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“Embarrassingly Wrong:” The Ongoing Misinformation Campaign about the Hunter Biden Hard Drive
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.”
Mike Johnson Let a Terrorist Roam the Capitol Yesterday
Mike Johnson had a wild run yesterday. Having once called for “any individual who committed violence” on January 6 to be “prosecuted to the fullest extent of the law,” Johnson seemed to agree with JD Vance that violent attackers should not get pardons.
But after Trump put over a hundred violent criminals out on the streets, Johnson then defended Trump’s pardons, calling to move on.
Over the course of the day, Johnson set up a Committee to keep investigating January 6, boasted about Americans “deserving safety and security” — a wildly inconsistent stance with releasing a bunch of violent criminals, and then accusing Bishop Budde of “sow[ing] division” because she spoke of mercy.
Meanwhile, as this was all going on, Mike Johnson (who as Speaker plays a role in overseeing the Capitol Police) let a terrorist prowl the Capitol.
Stewart Rhodes was in Longworth Office Building lobbying that Jeremy Brown — who, because he also got prosecuted for having unlawful weapons and classified documents in his Florida home, was not released yesterday — get a further pardon so he can be released (it’s unclear how a member of Congress would make this happen, but maybe Yale Law grad Stewie doesn’t understand the legal posture of Brown’s case).
Rhodes was spotted in the Dunkin’ Donuts inside Longworth House Office Building, which is accessible to the public, with a group of people. He said he did not go into the actual Capitol building.
Rhodes said he was advocating for the release of Jeremy Brown, another Oath Keeper who is in prison on federal weapons charges stemming from an investigation into his alleged involvement in the riot.
Rhodes said Brown was not included in Trump’s sweeping pardon of nearly 1,600 people arrested in connection to the rampage and that he went to the Capitol with Brown’s family members. He said that no members of Congress invited him to the Capitol specifically.
“We’re advocating members of Congress, advocating that he be given a pardon also,” Rhodes told reporters.
Rhodes is one of the fourteen people whose sentence Trump commuted, but did not pardon. And he was not only convicted by a jury of sedition and obstructing the vote certification, but Judge Amit Mehta applied a 6-level terrorism enhancement at sentencing.
As Kathryn Rakoczy successfully argued at sentencing, Rhodes had organized an armed force across the river, and regretted not deploying it that day.
I think organizing an armed force across the river that was prepared to come in comes pretty close to being pretty much like advocating for actions that could cause the loss of life. The repeated uses of how we need to have a bloody Civil War comes pretty close. And it is incredibly hard to forget the chilling words of Mr. Rhodes on January 10th that suggests that on January 6th, he was playing a little bit of the long game, but that were the President not to do something about calling up the Oath Keepers and literally starting a civil war, that his view was, “Actually, I should have called in the QRF on the 6th.” And I think when you’re thinking about whether this was terrorism, which we believe it was, all of those factors suggest that something around the level of a six-level adjustment feels right.
This is terrorism. It’s not blowing up a building directly or directing someone else to blow up a building. But certainly in light of the threat of harm and the historic significance of attempting to stop the certification of an election for the first time in U.S. history, those facts together we do think provide a factual basis that supports an increase of roughly six levels.
As Mehta laid out when applying the enhancement, the goal of all this was to influence the conduct of government by coercion.
As I said yesterday, I think as a matter of law, the conduct of conviction of seditious conspiracy meets the description foursquare of what that element — excuse me, what that enhancement requires a showing of, which is an offense other than the one that is enumerated in the Guideline, but the motive was to intimidate or coerce a civilian — I’m sorry, rather than — sorry.
The motive was to — calculated to influence or affect the conduct of government by intimidation or coercion, which were to retaliate against government conduct. Certainly that first clause applies squarely to the conduct of conviction.
And based upon the facts as I found them yesterday and have incorporated them today, Mr. Rhodes and his compatriots’ objective was to affect the conduct of government, specifically Congress, and to do so through intimidation and coercion by means of force, both through the stockpiling of weapons in the event that they needed to be brought across the river — there was an agreement as to that — and then, of course, the actual use of force by others who went into the building and applied that force against police officers who were doing their duty that day.
Trump did not, as he did with Enrique Tarrio, pardon Rhodes. Rather, he left the judgement against Rhodes in place; he simply said, effectively, that three years and a week was a sufficient sentence for a guy who plotted an armed attack on the government.
At least one staffer tried to tell Stewie that it was disrespectful to return to the scene of the crime.
He obfuscated, as he always does.
But the legal fact remains. He has not been pardoned of his sedition conviction and terrorism enhancement. Donald Trump chose to leave the judgment in place (for now, though Rhodes is reportedly still pressing Trump for a full pardon).
And Mike Johnson let him wander around the Capitol, all while claiming discussion of “mercy” was divisive.
Update: Judge Mehta has now barred Rhodes and the other Oath Keepers whose sentences were only commuted from the Capitol.
Herod Goes to the National Cathedral and is Disappointed
The Right Reverend Mariann Edgar Budde, Episcopal Bishop of Washington DC
It was amusing to me to hear Trump’s reaction to the service at the National Cathedral on January 21st. I’ve been a pastor for a long time, and heard many opinions offered about the quality (or lack thereof) of the services I’ve designed and led and the sermons I’ve given. To me, Trump’s reaction says a lot more about him than it does about Episcopal Bishop Mariann Edgar Budde.
To start things off, here’s the printed program [pdf] prepared for those who attended the service. (You can watch the video of the service on the Cathedral’s YouTube channel here.) Notice the title on the front cover: “A Service of Prayer for the Nation.” Notice what isn’t on the front cover? Two words: Donald Trump. The message is clear, right from the start – this isn’t a celebration of Trump, like the inaugural balls or the rally at the Capital One arena. This is a service for the nation.
Not for “the citizens of” the nation.
Not for “the taxpayers of” the nation.
Not for “the leaders of” the nation.
This was a service for the nation – the *whole* nation.
Trump can attend, but it’s not about him or for him. It’s a service for the nation.
It’s also a service of prayer, and as I browse through the program, I can’t help but see the *whole* nation raised up again and again and again.
The pre-service music is an eclectic mix. The carillon selections are largely American composers, pairing old composers with 20th and 21st century arrangers. Two of the compositions are by anonymous composers, whose names have been lost to history while their music has not. The four organ selections are by two Lutherans (Bach and Buxtehude) and two Jews (Fanny Mendelssohn and her younger brother Felix). Bach and the Mendelssohns were German, and Buxtehude’s roots are more complicated because of the changing borders of Denmark, Sweden, and northern Germany at the time he was born. The brass selections come from three great composers from three nations: John Rutter (England), Anton Dvorak (the Czech Republic), and Aaron Copland (one of the greatest American composers). The pre-service music concluded with five choral pieces, each of which has deep roots in American religious life. These selections set the tone: this is a service for all the nation, with a mix of instruments, a mix of composers, and music with a mix of ethnic and religious roots that befit the mixed and diverse roots of the nation.
The Entrance Rite began with words from Jesus in Mark 17: “My house shall be called a house of prayer for all people.” Note those last two words: all people. Not a few, not some, not many, but *all* people. After a blessing from the traditions of the First Americans, the indigenous people who were here long before the Mayflower and Jamestown; long before Cortez, Pizarro, Balboa, and Ponce de Leon; long before Columbus and long before the Norse; the opening hymn by Fred Kaan was sung by all who are present in this moment, beginning like this:
For the healing of the nations, God, we pray with one accord;
for a just and equal sharing of the things that earth affords;
to a life of love in action help us rise and pledge our word.
I can imagine that a beginning like this put Trump in a pickle. “It’s all woke crap” he must have been thinking. “When will we get to the acclamation of my win in the election? When will we get to their acknowledgment of my power, my success, my victory? When are we going to get to the praise of me?” Spoiler alert: Never, never, and never. Because this service was never going to be about Trump, and I’m sure that never even dawned on him as he arrived at the National Cathedral.
But back to the hymn.
Lead us forward into freedom; from despair your world release,
that, redeemed from war and hatred, all may come and go in peace.
Show us how through care and goodness fear will die and hope increase.
In the context of Trump’s campaign, and the even closer context of Trump’s post-election announcements of his plans for the first hours and days of his administration, these words are a respectful yet powerful rebuke. Kaan is quite clear: the vision of the God to whom this prayer is addressed is One who prizes justice, equality, love, freedom, peace, care of others, goodness, and finally hope. This God is likewise dedicated to the end of slavery, despair, war, hatred, and most of all, fear. That last list is Trump’s go-to list, and Kaan named and condemned it out loud, in no uncertain terms, in four part harmony.
But Kaan was not done.
All that kills abundant living, let it from the earth be banned;
pride of status, race, or schooling, dogmas that obscure your plan.
In our common quest for justice may we hallow life’s brief span.
I knew Fred Kaan, whose early life was shaped by his family’s work in the Dutch resistance to the Nazis during World War II. He knew, firsthand, the ugliness of life under leaders who prize race and status, who punish and kill those who are Not Like Us. That first word – All! – leaps out with power, this time aimed at each and every power that divides, diminishes, and kills the abundant life God intends for all people. These are words of resistance, written by one who (along with his family) lived a life of resistance during WWII. These are words offering hope to those unwilling to sell their souls to MAGA and Trump, and sending a shiver through Trump and JD Vance if they were paying attention.
And Kaan is still not done, as he ties up this hymn with one last broadside against the MAGA Un-Gospel:
You, Creator God, have written your great name on humankind;
for our growing in your likeness bring the life of Christ to mind
that by our response and service earth its destiny may find.
Those who pray this prayer — who sing this song — are not praying to shut refugees seeking safety out of the country. They are not praying to round up those who lack the right paperwork to live here, put them in detention camps, and shove them elsewhere. They are not praying to celebrate the exceptionalness of one race or nation or person above the rest of humanity. They are not praying to sit back in comfortable wealth and luxury, leaving it to the poor and needy to pull themselves up by their own bootstraps.
In one short hymn, the entire inaugural address that Trump gave the day before was ripped apart, using the voices that come from the throats of everyone sitting around him. His entire campaign message was challenged and opposed, by every voice that rang to the vaulted ceiling and was broadcast out to the world. Kaan died in 2009, but this hymn sounds as if it could have been written last week. And Trump had to sit there and take it, with all the cameras rolling.
Worst of all for Trump, this was but the beginning of the service.
I’m not going to go through the rest of the service in this kind of detail – you can do that for yourself. There were prayers offered by folks from all kinds of religious traditions – Christians of various denominations, as well as Jewish, Muslim, Hindu, Buddhist, and Sikh leaders. These prayers were filled with words like “all” and “every” to paint a picture of our common life together. In the “prayers for all who govern,” the first petition was not for President Trump, but for “all the peoples of the earth,” and moved more narrowly to “the people of our nation” meaning all the people. In the “prayers for those who serve,” the petitions were offered for those in the armed forces and the diplomatic corps, for all civil servants that “they serve with integrity and compassion, without prejudice or partiality to better their communities and the nation,” for all teachers and educators, for all first responders, and critically at the end, “all the people of our land.” In the “prayers for the peoples of this nation,” Methodist Bishop LaTrelle Easterling opened them like this: “O God, whom we cannot love unless we love our neighbor, let us pray for the most vulnerable in our community and lead us to be present with them in their suffering.” This was followed by petitions of specific and vivid mention of those who are most vulnerable.
All this is what led up to the sermon by the Right Reverend Mariann Edgar Budde that garnered such attention in the media and such opprobrium from Trump. He tried to personalize it, demanding an apology from her, but far from her being some isolated voice standing up to him, or some he said/she said debate, Budde was speaking out of the deep religious traditions of a very diverse nation:
In the name of our God, I ask you to have mercy upon the people in our country.
We’re scared now. The people who pick our crops and clean our office buildings, who labor in poultry farms and meatpacking plants, who wash the dishes after we eat in restaurants and work the night shifts in hospitals.
They may not be citizens or have the proper documentation, but the vast majority of immigrants are not criminals. They pay taxes, and are good neighbors. They are faithful members of our churches and mosques, synagogues, gurdwara, and temples.
I ask you to have mercy, Mr. President, on those in our communities whose children fear that their parents will be taken away, and that you help those who are fleeing war zones and persecution in their own lands to find compassion and welcome here.
This now-famous plea directed specifically to President Trump, offered in a quiet and measured words, was not a one-off. In that plea, she summed up and made plain the implications of Kaan’s opening hymn, the words of the prayers offered throughout the whole service, and everything that took place in the 90 minutes before she took her place in the pulpit and began to speak. If Trump was waiting for the service to finally turn to him, this plea is when it happened — and it pissed him off.
What Budde did, in all humility and in all power, was to name Trump for what he is: one of us, with specific powers and abilities to directly shape life for all the people of the country, and indirectly for the world. Note, though, that what she pleaded for from Trump was of a piece with all the music and prayers, calling on every one of us to use our own far smaller powers and abilities to shape life for all the people in our orbit for the better, as small as our powers may be compared with the powers wielded by Trump.
That, perhaps, is what most put Trump out of joint. She was saying to him “Your title may be fancier, your staff may be grander, cameras may follow your every movement, and microphones strain to catch your every word, but in the end, you share the same task as the lowliest person who cleans hotel rooms, who labors to pick crops and build homes and process poultry while undocumented. You are One of Us, no more special and no less special, no matter how much you long for it to be otherwise.”
I’ve preached to congregations that have included mayors and city officials. I’ve preached to state legislators, state executive branch officials, and state supreme court justices. I’ve preached in services attended by a presidential candidate (Illinois Senator Paul Simon). One thing that has sustained me in those settings, and given me the strength to say what needs to be said, is the strong sense of being surrounded by the voices of the ancestors, preaching this same good news to them that I preach to the lowliest and most marginalized- that all that God has made is good, and all deserve support and care and love from each other.
Several years ago, on the eve of the first anniversary of January 6th, I compared Trump with King Herod who tried to use the wise men so he could kill the infant born to be the Messiah, and I used not simply the account from the Gospel of Matthew but also the retelling of the story by James Taylor in his song “Home By Another Way. Here, in part, is what I wrote that day:
But Taylor isn’t singing just to retell the story of what happened back then. He’s preaching, in his own way, drawing his listeners into the song and changing us here today:
Well it pleasures me to be here
And to sing this song tonight
They tell me that life is a miracle
And I figure that they’re right
But Herod’s always out there
He’s got our cards on file
It’s a lead pipe cinch
If we give an inch
That Herod likes to take a mileIt’s best to go home by another way
Home by another way
We got this far to a lucky star
But tomorrow is another day
We can make it another way
“Safe home!” as they used to say
Keep a weather eye to the chart up high
And go home another wayYes, Herod *is* always out there, looking to game the system and rape the system and break the system if that’s what it takes to keep himself in power.
But there is also always another way, a way that leaves Herod and his successors powerless and impotent.
My description of Herod’s/Trump’s way came back to mind with a crash on the 20th, as word of all those initial executive orders came tumbling out. Saying Trump is “looking to game the system and rape the system and break the system if that’s what it takes” back then seems frighteningly prescient today.
But like the wise men of old, Bishop Budde knows another way, as do all those who planned this most powerful service, and as did Fred Kaan. In JT’s words, in the face of Trump’s blizzard of executive orders which are designed to take and take and take some more from the most vulnerable among us, Budde didn’t give an inch. Instead, she stood in the path of our American Herod along with a host of others, naming that other way home.
And here’s the really really good news, that would scare Trump even more if he were to think about it: you don’t have to be a bishop to name Herod for who he is, to call out his ways of fear and death, and to lift up our neighbors. That’s what the wise men did, in going home by another way. They protected a poor, vulnerable refugee-to-be from a vengeful tyrant who feared for his own power. And that’s what each of us can do, wherever we are: name Trump’s way as the path of division, destruction, and death, and point to another way.
Because JT was right: it’s best to go home by another way.
The Stephen Miller EOs
At least in response to questioning from journalists yesterday, Trump had — or feigned — a very limited understanding of some of the Executive Orders he has signed in the last two days. For example, he couldn’t explain why he had pardoned Danny Rodriguez, who nearly killed Michael Fanone. And he explained the Enrique Tarrio pardon by pointing to the Proud Boy leader’s burning of a BLM flag, which (along with his attempted possession in DC of unlawful weapons) was punished separately from Tarrio’s seditious attack on the Capitol.
With Trump, one should always start with the assumption he’s engaged in a con, but it really is possible he only vaguely understands some of what he just signed.
That, plus the number of typos and other sloppy errors commentators have noted in the EOs, makes me wonder whether Stephen Miller drafted everything and decided, in real time, which Executive Orders to hand to Trump to sign, like a gamer might deploy his favorite Magic Card deck. In a piece on Vivek Ramaswamy’s purge from DOGE [sic], for example, WaPo reveals that, “Draft executive orders favored by Musk were implemented, and those put forward by Ramaswamy’s team that Musk had ignored in recent weeks are unlikely to be issued.” Who knows? Maybe there’s even an EO with all the January 6 pardons that only commuted the sentences of those who assaulted cops or were deemed to be terrorists, rather than granting (in many cases) full pardons.
There are at least two Executive Orders that have Stephen Miller’s name all over them which deserve closer scrutiny: One claiming to “restor[e] freedom of speech and end[] federal censorship,” and another claiming to end[] the weaponization of the federal government.”
Both have the same structure. They order the Attorney General (and the Director of National Intelligence, in the weaponizing EO) to go chase down conspiracy theories spawned by Jim Jordan: that the Federal government is infringing on free speech and weapon or targeting Joe Biden’s opponents. Here’s how it looks in the latter case:
The Department of Justice even jailed an individual for posting a political meme. And while the Department of Justice has ruthlessly prosecuted more than 1,500 individuals associated with January 6, and simultaneously dropped nearly all cases against BLM rioters.
[snip]
(a) The Attorney General, in consultation with the heads of all departments and agencies of the United States, shall take appropriate action to review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, and the Federal Trade Commission, over the last 4 years and identify any instances where a department’s or agency’s conduct appears to have been contrary to the purposes and policies of this order, and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy and the Counsel to the President, with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order.
(b) The Director of National Intelligence, in consultation with the heads of the appropriate departments and agencies within the Intelligence Community, shall take all appropriate action to review the activities of the Intelligence Community over the last 4 years and identify any instances where the Intelligence Community’s conduct appears to have been contrary to the purposes and policies of this order, and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy and the National Security Advisor, with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order. The term “Intelligence Community” has the meaning given the term in section 3003 of title 50, United States Code. [my emphasis]
These orders will give Pam Bondi cover to conduct an investigation without the predicate otherwise required, and do so outside the normal institutions (like DOJ’s Inspector General and DOJ and FBI’s Offices of Professional Responsibility; to say nothing of Trump-appointed judges who already debunked the EO’s claim about selective prosecution of January 6ers) that afford targets some due process.
The scope of this review is very strictly the last four years. Thus, it will exclude a great deal of weaponization Bill Barr engaged in (including the Brady side channel via which Joe Biden was criminally framed) and even every single one of the notices regarding misstatements about voting means, time, or location that Barr’s DOJ authorized in the 2020 election, which were one main focus of the Twitter Files. It will ignore that the investigation into Douglass Mackey — the reference to an individual who posted a political meme, above — in chatrooms to which Stephen Miller was, at the very least, adjacent (and Don Jr was in), was almost entirely conducted during the first Trump Administration.
It will likewise exclude the far greater threats to free speech going forward. Donald Trump’s threat to send Mark Zuckerberg to prison for the rest of his life? Issued before Trump returned to government. Brendan Carr demanding that CBS platform right wingers, while ignoring Fox’s production of exclusively right wing content? Officially government, as of Monday, but therefore outside the scope of the four year review. And Stephen Miller coaxing Zuckerberg to making his platforms amenable to genocide again? Not yet a government action.
Take special notice, too, that the SEC and FTC are included among the agencies where Bondi is instructed to go find weaponization. Again, that picks up a Jim Jordan crusade, one targeted at regulatory agencies holding Elon Musk accountable for agreements the company he bought had already entered into, to say nothing of Elon’s efforts to tank Xitter’s own stock. Sure, some of this is Miller’s means to undermine the legitimacy of the January 6 investigation, but it’s also a personal sop to the richest man in the world.
And after Pam Bondi conducts an investigation into things that aren’t crimes via means that evade normal due process? She writes a report and gives it to … Stephen Miller, who among other things has been cultivating first Elon and then Zuck to platform Nazis.
When Jim Jordan conducted these crusades, he was shielded by Speech and Debate from adhering to basic facts. These EOs are an attempt to create space for Bondi to similarly escape the kinds of evidentiary rules and basic due process that limited Trump’s prior attempts to target his enemies.
If they find something, Miller will feed them to Trump to make issue of. If they don’t (there are few real complaints about the January 6 investigation, aside from the shitty DC jail and difficulties created by COVID; and for much of Biden’s term, the agencies of interest to Miller for engaging in government speech were constrained by lawsuits by Miller’s allies), then Miller can just burn the report in the same fireplace Mark Meadows use to use.
In other words, these two EOs (I’m sure there are other similar ones) claim to attack the politicization of government by ordering Pam Bondi to politicize DOJ.
Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days
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.
Pardons
Trump ended his first term by pardoning war criminals.
Biden ended his only term by pardoning a decorated military General.
After forty-three years of faithful service in uniform to our Nation, protecting and defending the Constitution, I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights. I do not want to put my family, my friends, and those with whom I served through the resulting distraction, expense, and anxiety.
Trump pardoned people who lied to cover up his Russian exposure.
Biden pardoned a guy who tried to tell the truth to save millions of lives, while working for Trump.
Let me be perfectly clear: I have committed no crime and there are no possible grounds for any allegation or threat of criminal investigation or prosecution of me. The fact is, however, that the mere articulation of these baseless threats, and the potential that they will be acted upon, create immeasurable and intolerable distress for me and my family. For these reasons, I acknowledge and appreciate the action that President Biden has taken today on my behalf.
Update: I should have linked the post I did in December, explaining how preemptive pardons aren’t going to work (though I said then, and reiterate now, I think Milley is a special case).
Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!
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
Listen on Spotify (transcripts available)
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On the Misguided Tactical Conversations about Volume Two of the Jack Smith Report
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.