“This is a rush job, as it needs to get out as soon as possible:” Jim Jordan-Led Investigation Discredits John Ratcliffe

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In his latest effort to use the House Judiciary Committee as a goon squad to intimidate Donald Trump’s enemies, Jim Jordan actually developed proof that John Ratcliffe — and not the 51 former spooks he was after — inappropriately politicized intelligence to manufacture debate props.

And then Jordan did it himself.

I have the perfectly curated Xitter account to learn when Jim Jordan has released his latest installment of weaponization against democracy.

Last week, he issued his latest attempt to make a scandal out of the true free speech of the 51 former spooks who wrote a letter saying that the release of a Hunter Biden laptop days before the election “had all the classic earmarks of a Russian information operation.” My replies were overrun with trolls chanting incoherent claims.

Of course the trolls in my Xitter feed didn’t know the most basic details of the letter or known facts about the copy of a hard drive referred to as a Hunter Biden laptop:

  • The former spooks didn’t say this was disinformation, no matter how many times Jordan or Glenn Greenwald lie and say they did. In fact, they specifically caveated that they didn’t know if the emails were genuine and did not have evidence of Russian involvement.
  • Nothing revealed about the laptop or the hard drives purportedly based on the laptop rules out Russian involvement. That’s true, in part, because the FBI never bothered to test the laptop to see if anything had been added, never indexed it, and when introduced at trial, the summary witness specifically said she had not looked for signs of tampering. Plus, there were enough Russian drug and sex workers in close proximity to earlier Hunter Biden laptop compromises to allow for a role, particularly in packaging up the device.
  • As the Democratic rebuttal notes, the 51 spook letter couldn’t have caused the social media companies to throttle the original New York Post story without a time machine, as Twitter and Facebook had stopped throttling the story several days before the letter was published. Linear time. It’s like magic to these trolls.

Even though Jordan’s latest report substantiates absolutely no misconduct, the trolls nevertheless yapped and yapped about it. Jordan showed:

  • While Mike Morrell did target the letter to the last debate (the same one where Trump invited Tony Bobulinski to make claims that have not held up), the other participants were not doing this for the Biden campaign; they were doing it to speak out against Russian interference in the 2020 election
  • The former spooks couldn’t have leaked classified information because none of them were read into pertinent information regarding the Russian spies cultivating Rudy Giuliani
  • The former spooks got preclearance to publish the letter via the normal process
  • After preclearance, the letter was forwarded for Gina Haspel’s attention, but neither she nor anyone else thought it was more important than vaccinating the CIA workforce
  • Some of the people involved were private citizens with contracts that did not strip them of their free speech

In other words, the 51 spooks followed the rules, and Jordan was stuck trying to turn it into a scandal.

The Jordan report was only 31 pages and, like a college freshman composition paper, blew entire pages with big screen caps repeating the complaints of two random spooks complaining about “random signatures” on the letter and some discussion of Mark Polymeropoulos getting something excluded from a follow-up.

Polymeropoulos’ attorney, Mark Zaid, explained that CIA redacted two lines, which had nothing to do with Hunter Biden, from the Polymeropoulos follow-up — but that was precisely how preclearance is supposed to work.

Mr. Polymeropolous submitted to the PCRB a two page talking points memo about the subject matter. Obviously, he knew that there was going to be media attention concerning the issue and he wanted to be properly prepared to address the topic if asked. He followed the standard procedure for review of information intended to be made public. No different than any other individual who has a prepublication review requirement. As part of its review, which was handled in the normal timely fashion for such a short document, CIA redacted two lines of information as being classified. Those two lines had nothing to do with the Hunter Biden laptop specifically and concerned Mr. Polymeropolous’ background experience with Russia and a comment concerning that country’s activities generally. Of course, that information was properly protected by Mr. Polymeropolous and never used. To say that this constituted an attempt to use classified information is farcical and reflects a complete lack of understanding how the prepublication review process works. The system operated exactly how it was supposed to and is being distorted for political purposes.

That’s it. That’s the best Jordan could rush out to give Trump something to complain about in a presidential debate over and over.

To think that I would, in front of generals and others, say suckers and losers – we have 19 people that said it was never said by me. It was made up by him, just like Russia, Russia, Russia was made up, just like the 51 intelligence agents are made up, just like the new thing with the 16 economists are talking.

It’s the same thing. Fifty-one intelligence agents said that the laptop was Russia disinformation. It wasn’t. That came from his son Hunter. It wasn’t Russia disinformation. He made up the suckers and losers, so he should apologize to me right now.

[snip]

I’ve dealt with politicians all my life. I’ve been on this side of the equation for the last eight years. I’ve never seen anybody lie like this guy. He lies – I’ve never seen it. He could look you in the face. So – and about so many other things, too.

And we mentioned the laptop, We mentioned “Russia, Russia, Russia,” “Ukraine, Ukraine, Ukraine.” And everything he does is a lie. It’s misinformation and disinformation. The “losers and suckers” story that he made up is a total lie on the military. It’s a disgrace.

This was Trump’s prepackaged answer to attempt to projection his own lying onto Biden. It was barely more vigorous than Biden’s rebuttals.

As flimsy as it was, though, Trump’s use of the 51-spook letter was part of a larger effort, one designed to bully those who speak up against Russian disinformation, disinformation generally, or in favor of rule of law. As John Brennan described, it created a furor about the letter that distracted from Russian intervention, which in turn serves to divide the country.

I think the firestorm, the furor has been created responding to the letter as opposed to the letter itself, as I responded to one of the Congressmen earlier. So it’s unfortunate that this is taking up all your time, it’s taking up my time, and it is, again, further dividing the country.

And, by design, it has chilled speech that talks about Russian interference.

One after another of the spooks interviewed confessed they or others would be chilled by the precedent of Jordan investigating private citizens for their free speech. Kristin Wood described how Mike Flynn put out all their names on a Telegram chat, leading to stalking and death threats.

Several ways. First of all, I’ve received death threats. I’ve received vicious calls, texts, emails from all sorts of random people. Mike Flynn — General Flynn posted on Telegram all of our names and said, you know, let them know how we feel. It unleashed this viciousness that had several other folks calling the police, calling the Threat Management Unit at CIA, to let them know what was happening.

And so for the first time ever, I looked at getting a gun and getting a concealed carry permit because it’s not just that people have been mean or say horrific things, but we’ve seen them take action. And so that feeling of vulnerability for speaking, exercising a First Amendment right, and for saying what I thought was as obvious as there’s air in — there’s air. Let’s just let the FBI do their work.

It has a profound effect on health as well. I’ve been to the emergency room for stress because of all of this. And so when you ask would I do this again, I would insist on a little more precision of language. But it has the effect of censoring people who have more than a thousand years of experience in this topic. And I would think the focus would be on stopping Russia and not on what feels like persecution.

Several of the spooks admitted the mob treatment would lead them to decline further involvement in anything political. Most described that it would chill others.

At that level, the spooks are just like the disinformation experts Jordan also targeted, those who tracked efforts to muddy reason and truth. Their lives have been upended because they attempted to track Russian disinformation that served Republican interests, and the personal and financial cost is shutting down those efforts during an election year.

But then something funny happened.

House Republicans kept pushing the spooks, arguing — notwithstanding the public reporting on Rudy Giuliani’s efforts to solicit dirt from known Russian agent Andrii Derkach — that the spooks should have known, somehow, that the hard drive called a Hunter Biden laptop wasn’t Russian disinformation (which, as noted, the spooks didn’t claim).

Republicans — often Jordan himself — kept asking whether the spooks knew that John Ratcliffe had claimed the laptop was not disinformation (which, again, was not what the letter claimed).

Chairman Jordan. Were you aware of Mr. Ratcliffe’s statement on the morning of the 19th, prior to the letter being sent, where he said in an interview on FOX News that morning that this is not part of the Russian disinformation campaign?

And that led multiple witnesses to explain why Ratcliffe simply wasn’t credible. Wood described that a proper counterintelligence investigation takes longer than would have transpired (no one knew how long the FBI had had the laptop).

Ms. Wood. So, I think what I would say in response to that is that the letter — the purpose of the letter was to say, Let’s not rush to judgment. Everyone, regardless of who they are as Americans, deserves due process. Let’s let the FBI do their work. And when DNI Ratcliffe said that — so as you have seen from all of these investigations, right, they take a very long time to do, to do the considered judgment of 17 or 18 intelligence agencies, and to come up with that to do the exhaustive search of asking new sources, of pulling in every bit of signals intelligence, there’s just no way that’s possible to have been done in the timeframe in which that statement was made. So our whole point was to say, Be careful here. Let us — we don’t know if this is all real. We don’t know if all the emails are real, and we don’t know if this is tied to the Russians. Let’s let the process work

James Clapper described that, not only didn’t he consider Ratcliffe a reliable source, but that he made the statement before any investigation of the laptop.

Mr. Clapper. Well, if the Department of Justice or the FBI or some other legitimate credible source of — who had done a credible forensic analysis — certainly I would accept that. That’s why I suggested that would be a good — would have been a good fix — a good addition to the letter had we said that.

Mr. Gaetz. Are you aware of Director Ratcliffe, the DNI at the time, contradicting the thrust of this letter you signed?

Mr. Clapper. Well, okay. He said that statement before, I think, an investigation had begun of the laptop. So I don’t know where he’s coming from making a statement like that.

In response to a follow-up question from the Minority, Clapper also agreed that Ratcliffe himself was making public statements in anticipation of the debate.

Q It’s an article reporting on Ratcliffe’s remarks, and it’s dated October 19th, 2020, 1:49 p.m. And we’re just introducing it for the fact of the date. The New York Post story in question was released on October 14th, correct?

A Yes.

Q So that would have been 5 days before Ratcliffe made his remarks?

A Right.

Q And I think you said earlier he couldn’t have even begun an investigation in that time period. Is that correct?

A Correct.

Q And can you explain what you mean by that?

A Well, I don’t know how — what his basis for making that statement is when the laptop itself hasn’t been investigated. The DNI, Office of the Director National Intelligence, has no organic forensic analysis capability at all. So they’re dependent on other components of the intelligence community, in this case the FBI, to render such a judgment, which hadn’t been rendered. So I don’t know how he could make that statement.

Q Okay. And even assuming that Ratcliffe — sorry. Withdraw that. And he made these remarks on October 19th, which was the day before the second debate, correct? The second Presidential debate was the 20th.

A Uh-huh.

Q So isn’t it possible that Ratcliffe also made his remarks in the hope that they would impact the debate?

A Well, one could conclude that, yes.

John Brennan was even more disdainful of Ratcliffe’s actions. He described that Ratcliffe’s release of his briefing notes, for the first 2020 debate, made it clear that Ratcliffe was involved in politics.

Chairman Jordan. Director, were you aware of what Director of National Intelligence John Ratcliffe said on the morning of October 19th regarding this Biden laptop story, where he said that it wasn’t a Russian disinformation operation?

Mr. Brennan. I don’t know if I was aware of it at the time, but I would have dismissed it anyway.

Chairman Jordan. Why would you have dismissed it?

Mr. Brennan. Because I don’t think John Ratcliffe was an independent, objective leader of the intelligence community at the time.

Chairman Jordan. So you would dismiss the statement from the Director of National Intelligence — the Acting — the Director of National Intelligence at the time, in the administration, getting intelligence in real-time, you would just dismiss that out of hand?

Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.

Mr. Gaetz. So your dismissing Mr. Ratcliffe was somehow payback for the fact that you thought that your briefing to President Obama had been mischaracterized?

Mr. Brennan. No, that’s not what I said.

Mr. Gaetz. Okay. Well, I’m trying to understand how this event that seems to have aggrieved you regarding the briefing to President Obama impacted your view of the Ratcliffe assessment.

Mr. Brennan. It didn’t aggrieve me. It just indicated to me that John Ratcliffe was not going to be an independent, nonpartisan, apolitical actor.

Brennan is referring to the notes he got about materials found among hacked documents in Russia, which Republicans and John Durham spun up, first of all, as true (rather than suspected Russian disinformation), and then misrepresented to claim that Hillary had a plan to frame Donald Trump.

Not only did Brennan see this as an election season stunt (which I observed at the time), but he described that Ratcliffe “misrepresent[ed] the facts” about the materials.

Jim Jordan has been searching for a former spook to accuse of politicizing intelligence in 2020 for years, and he finally found one! Trump’s hand-picked Director of National Intelligence, John Ratcliffe, who was doing precisely what Jordan falsely accused the former spooks of doing, but did so while still an employee of the Intelligence Community.

Update: Corrected that the “laptop” was not just a “hard drive,” but in fact a copy of another hard drive.

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Spirit of Revenge: John Roberts Says Joe Biden Can Demand an Investigation of Ginni Thomas

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As I wrote in this post, John Roberts chose to cloak his radical opinion eliminating rule of law for Presidents by nodding to George Washington’s Farewell Address.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

As I showed, that was partly an attempt to spin the usurpation of Executive Branch prosecutorial authority between Administrations as, instead, protection of the separation of powers of co-equal branches.

But it was also an attempt to deploy Washington’s warnings against partisanship as if they counseled doing what Roberts was doing, rather than the opposite.

Roberts had the audacity, for example, to quote from a passage talking about how unbridled partisanship could lead to foreign influence, corruption, insurrection, and authoritarianism and suggest he was preventing that, rather than immunizing it.

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another. [my emphasis]

As I described in the initial release of Ball of Thread, the podcast I’m doing with LOLGOP, the Republicans on SCOTUS really believe Trump’s garbage claims that his prosecution was about revenge and despotism, rather than an effort to stave it off.

Trump has gotten people who claim to care about the country to view up as down, fascism as freedom.

Never mind that a court riddled with corruption scandals invoked the passage of the Farewell Address warning against it.

Between the shock of the overall holding and the obsession with Joe Biden’s poor debate, though, there has been little focus on an equally troubling part of Roberts’ opinion: one sanctioning the wholesale politicization of DOJ.

In the passage throwing out the charges involving Jeffrey Clark altogether, Roberts prohibits review of not just DOJ’s prosecutorial decisions (except, of course, when they involve a President’s predecessor, in which case DOJ has very constrained authority), but also of the President’s involvement in those decisions.

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]

Here, Roberts turns the Take Care Clause on its head. Whereas conservative judge Karen Henderson viewed the Take Care Clause to require that the President obey the law, Roberts instead sees that as a source of permission for the President to demand investigations, even if they are proposed for an improper purpose.

In doing so, Roberts gives Joe Biden permission to demand an investigation of Ginni Thomas for the purpose of revenge against her spouse.

To be sure, in spite of Roberts’ expansive permission for President’s to politicize DOJ, there appear to be limits. Joe Biden cannot order the IRS to review whether Clarence Thomas has written off all the undeclared boondoggles Harlan Crow has given him.

One of the only laws specifically mention the President, it turns out, is 26 USC 7217, which prohibits certain people, including the President himself, from asking the IRS to take investigative action against a taxpayer.

(a)Prohibition
It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

(b)Reporting requirement
Any officer or employee of the Internal Revenue Service receiving any request prohibited by subsection (a) shall report the receipt of such request to the Treasury Inspector General for Tax Administration.

[snip]

(e)Applicable person
For purposes of this section, the term “applicable person” means—
(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; and

This law could one day, in the not-too-distant future, come before the Justices. It could even do so in the specific context at issue here, Donald Trump’s pressure on Jeffrey Rosen on December 27, 2020.

That’s because, as laid out in Hunter Biden’s selective and vindictive prosecution claim, in the very same conversation where Trump demanded that DOJ make false claims about election fraud, he also pressured Rosen to investigate Hunter Biden “for real.”

On December 27, 2020, then Acting Deputy Attorney General Richard Donoghue took handwritten notes of a call with President Trump and then Acting Attorney General Jeffrey Rosen, showing that Mr. Trump had instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating that Mr. Trump insisted “people will criticize the DOJ if he’s not investigated for real.”57

57 Dec. 27, 2020 Handwritten Notes of Richard Donoghue Released by H. Oversight Comm. at 4 (emphasis added), www.washingtonpost.com/context/read-richard-donoghue-s-handwrittennotes-on-trump-rosen-calls/cdc5a621-dfd1-440d-8dea-33a06ad753c8; see also Transcribed Interview of Richard Donoghue at 56 (Oct. 1, 2021), H. Oversight Comm., https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPT-CTRL0000034600/pdf/GPO-J6- TRANSCRIPT-CTRL0000034600.pdf.

Hunter Biden’s as-applied challenge to his gun charges are more likely to get to SCOTUS and do so more quickly.

But his prosecution, with the President privately and publicly intervening both as President and as candidate to replace his father raises fairly unprecedented questions about the due process rights of a person whom the President has demanded be investigated for the purpose of revenge.

Until such a case gets reviewed, however, John Roberts has invited Joe Biden to call up Merrick Garland and demand not just that DOJ open an investigation into Ginni Thomas, but to appoint a Special Counsel who could continue the investigation for the foreseeable future.

By refusing all review of improper pressure on the Attorney General, John Roberts has not eliminated the risk of revenge and despotism.

He has, rather, sanctioned it.

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Chief Justice John Roberts Just Invited President Biden to Pardon Nicholas Roske

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Since Republicans on the Supreme Court voted to make Presidents king yesterday, I’ve been thinking about ways to reverse the decision.

Some of those ways (like expanding the court) are structural, long term, and involve winning both the presidency and Senate in November by good margins.

But another way is to get the court to recognize how insane their ruling was in practice, to encourage them to moderate their order, as they did by using the Rahimi decision to moderate their Bruen insanity.

Another way is to use the pretrial hearings on what counts as official and unofficial conduct as a way to demonstrate the problem with the decision. Since any decisions Tanya Chutkan makes will come back to SCOTUS, they will have to review their handiwork.

But the one I keep thinking of is action President Biden can take that would demonstrate to the Justices the problem with their decision.

Some such actions would be symbolic: Biden can order the military to use military planes to fly women needing abortions in states where it is banned for necessary medical care, for example. Acting as Commander in Chief, his power would be at its zenith.

On Bluesky, someone recommended selling Willie Nelson a pardon — one guitar — for smoking marijuana in a National Park in a state where pot is legal.

But the most symbolic way that President Biden could convey the insanity of yesterday’s decision would be to pardon Nicholas Roske. Roske is the suicidal man who, in June 2022, flew to Maryland with vague plans but real weapons to assassinate Brett Kavanaugh. Since he filed a suppression motion for admissions he made after his arrest, he and the government have been discussing a plea.

Let me be clear: I don’t think it would be wise to pardon Roske. Biden has the unreviewable authority to do so, but it would be stupid to do so. While Roske seems he is mentally ill, he nevertheless armed himself and took steps that put Justice Kavanaugh in danger.

But Roske is exactly the kind of menace that John Roberts just immunized yesterday.

The weapons Roske armed himself with — including a Glock, pepper spray, zip ties, a hammer, a screw driver, a nail punch, a crow bar, and duct tape — were precisely the kinds of things with which January 6ers armed themselves when they attacked the Capitol and threatened to kill Mike Pence, Nancy Pelosi, and Mitch McConnell. Many January 6ers, like Roske, suffer from mental illnesses. Like Roske, many Jan6ers were trying to give their life meaning.

The only thing that makes Roske different is that he wasn’t sent by a political candidate trying to get elected.

Still, Roske is always used, especially by Congressional Republicans, to describe the unique danger the Justices face.

There would be no better way for Biden to make it clear to the Justices what kind of danger they have blessed than to pardon Roske (for which, again, I’m not advocating).

With their ruling yesterday, the Justices have said that Members of Congress, Biden voters, and democracy itself must face similar threats without recourse. And one way to make that clear would be to pardon Roske.

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Preprison Interviews Give Bannon a Chance to Pitch Fascism, Cover-Up His Fraud

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Because Steve Bannon is powerful — or perhaps because he has an effective publicist — multiple outlets decided to magnify Bannon’s views as he set off for prison for refusing to tell Congress about his role in planning an insurrection.

NBC’s interview largely gave Bannon the opportunity to undermine the integrity of any Democratic win in 2024. When Vaughn Hillyard asked Bannon to defend his claim that the Mar-a-Lago search had been an attempt to assassinate Trump, Hillyard never bothered to ask Bannon how that could happen, given that Trump was in New Jersey.

David Brooks’ interview gave Bannon opportunity to boast of his ties to European fascists (though like NBC, Brooks called Bannon’s work “populism,” not fascism).

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

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

Like NBC’s, Jon Karl’s interview consisted, substantially, of trying to get Bannon to admit he was calling for violence, with Bannon responding that it was all metaphor, figurative, Roman rhetoric.

All these journalists seem to think they’re going to get Bannon to admit he’s sowing violence, as if being just clever enough will get him to give up the game.

Bannon did say something interesting. When asked to describe Trump’s plans for a second term, Bannon described his plan to “end forever wars” to include the South China Sea:

  • Seal the border and mass deportations
  • Renew tax cuts for super wealthy
  • End US power projection in Ukraine, Israel, and the South China Sea, which he called ending “forever wars”

The last bullet point is a plan to cede power to authoritarian countries — Russia, Saudi Arabia and the Emirates, and China — at least some of which are suspected of funding Bannon if not his long-time associate, Guo Wengui.

But none of these interviewers asked Bannon about Guo, about Guo’s ties to UAE and his suspected ties, still, to the Chinese state. They sure as hell didn’t ask him about DOJ’s treatment of Bannon as a co-conspirator in Guo’s alleged fraud against his rabid followers.

More remarkable still, none of these interviewers asked Bannon about his upcoming fraud trial, the fraud for which all his charged co-conspirators are already doing prison time.

Steve Bannon stands accused of bilking rabid Trump supporters to support his lavish lifestyle. DOJ says his whole shtick is a fraud — fraud that serves his pocketbook, a fraud that serves the elite, a fraud that serves fascism, a fraud that might even serve the very countries he claims to oppose.

And multiple journalists decided to interview Bannon is if an accused fraudster would ever tell them the truth.

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Open Thread: Last Batch of SCOTUS Decisions

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

The last batch of decisions will drop shortly — I think. Last week the Supreme Court didn’t deliver all of the remaining decisions it had on its plate and pushed them into a new month.

I hope these outstanding cases will be decided today:

NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC (these are both about social media and may come as one or two decisions)

Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.

Trump v. United States

Decisions released today follow in an update at the bottom of this post.

~ ~ ~

First decision: Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.

Justice Barrett wrote the 6-3 decision; Justice Brown Jackson wrote the dissent joined by Sotomayor and Kagan.

This one could cause a lot of problems forcing reassessment of past rules and decisions by the Fed Reserve’s Board based on the dates used — the date an injury occurred due to a new Fed rule versus the date the new rule was first in force.

Second decision: NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC

Justice Kagan wrote the unanimous decision on these consolidated cases, though there are concurrences:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in
which JACKSON, J., joined as to Parts I, II and III–A. BARRETT, J., filed a
concurring opinion. JACKSON, J., filed an opinion concurring in part and
concurring in the judgment. THOMAS, J., filed an opinion concurring in
the judgment. ALITO, J., filed an opinion concurring in the judgment, in
which THOMAS and GORSUCH, JJ., joined.

Whew. I don’t see the word “dissent” in this, do you? It’s another smackdown of the Fifth Circuit as well.

Third decision: Trump v. United States

Justice Roberts wrote the 6-3 court decision; Justice Sotomayor wrote a dissent joined by Kagan and Brown Jackson. Justice Brown Jackson also wrote a dissent.

From SCOTUSBlog’s thread:

The court holds that a former president has absolute immunity for his core constitutional powers.

Former presidents are also entitled to at least a presumption of immunity for their official acts.

There is no immunity, the court holds, for unofficial acts.

The core constitutional powers are things like appointing ambassadors and foreign governments.

This is not all of the decision – Roberts was still reading his decision at 10:37 a.m. ET. It looks like this is being handed back to lower courts because of the lack of distinction between official and unofficial acts. It also looks like the rightwing of SCOTUS has extended immunity to Trump for his discussions with Department of Justice, which I assume means if he made any false statements to FBI or other DOJ personnel, those charges will be dropped.

~ ~ ~

This is an open thread. Any further updates related to these cases will appear at the bottom of this post.

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Don’t Let a Biden Succession Crisis Create a Succession Crisis

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It took no time for the pundits calling for Joe Biden to drop out of the race to reveal their fundamental childishness by asking for someone — Gavin Newsom, Gretchen Whitmer, JB Pritzker, Josh Shapiro — whose selection would create as many problems as they might, hypothetically, solve.

Nicholas Kristof, pulling a paycheck from the same people who demanded Biden step down because he didn’t do their job — “hold Mr. Trump accountable for his lies, his failures and his chilling plans” — well enough, even suggested the 71-year old guy running for a must-win Senate seat should take Joe’s place.

Biden can resolve this by withdrawing from the race. There isn’t time to hold new primaries, but he could throw the choice of a successor to the Democratic National Convention in Chicago. The Democratic Party has some prominent figures who I think would be in a good position to defeat Trump in November, among them Gov. Gretchen Whitmer of Michigan, Senator Sherrod Brown of Ohio and Gina Raimondo, the secretary of commerce. And there are many others. [my emphasis]

These are not serious people, or even very smart about politics.

For both political and legal reasons, it would be doable to swap Biden for Kamala Harris, and for the same political and legal reasons, swapping Biden for anyone else is highly likely to do at least as much harm as good.

There are a number of people making this point succinctly. Jamelle Bouie has said it in a lot of ways worth following. Dan Drezner says it here.

But even these guys are making what I view to be a potentially catastrophic mistake. They think Biden should both step down from the race and resign the presidency, as Drezner lays out this way.

Here’s the thing, though: if Biden were to decide to step aside in the wake of a poor debate performance, the inevitable question would be whether he should step aside immediately. As previously noted, he is only going to keep aging, and the federal government cannot function well with a 10-4 presidency.

Biden resigning this summer would generate three political advantages. First, Kamala Harris being sworn in as the first lady president would be, to quote Biden, a big fucking deal. It would be a suitable final act in Biden’s distinguished political biography. Second, it would make the November election a choice between former president Trump and President Harris. The move would put Harris at Trump’s level and eliminate experience as a Trump argument during the campaign. Finally, Harris being president would remove the inherent awkwardness that sitting vice presidents have faced when running for the top job: being unable to disagree or disavow the sitting president’s policies. Anything that makes it easier for Kamala Harris to not resemble Al Gore is a good thing.

I think these calls for Biden to resign are as facile as the calls for Gretchen Whitmer to march into the convention and take over (much as I might like that to happen).

That’s true for one big reason: It turns out with a House packed with rabid supporters of Trump and led by a better-spoken but equally rabid supporter of this fascist project, having a Vice President is an important failsafe for democracy.

That’s true for two reasons. First, remember what happened on January 6, 2021? Big mob, chants of “hang the VP,” tweets encouraging the mob to do so? The VP may not have a big portfolio on most days. But she does on the day that, recent history warns us, is a fragile moment of our democracy. Certainly, it’s possible Democrats could convince Republicans to let Patty Murray do that job, as Chuck Grassley was prepared to do back in 2021.

But the bigger problem is the target you would put on Kamala Harris’ back if she became a President, running for re-election, without a Vice President as her designated successor. Trump has already made it clear he plans to return to power by any means necessary. Trump has already spent years frothing up his followers to a frenzy that could (and has) tipped into violence with little notice. Indeed, more than a handful of Trump’s supporters have embraced violence, some after getting riled up on Truth Social, others after little more than an incendiary Fox News rant.

The Secret Service did a piss poor job of protecting Kamala Harris on January 6. Let’s not tempt fate or Trump’s rabid brown shirts to make Mike Johnson President.

Besides, very few of the pundits screaming to replace Biden are focused on governance. This Franklin Foer piece, for example, engages in paragraph after paragraph of projection about the motives of Biden’s top aides, argues that it’s not enough to be a good President, Biden also has to campaign competently.

When I talk with aides on the inside, they never question Biden’s governing capacity. Perhaps this is their own wishful thinking. Perhaps they are better able to see how the benefits of experience overwhelm his inability to recall a name. But it’s also the product of a delusion among the Democratic elite about what constitutes effective leadership. Governing competently is different from campaigning competently. The ability to think strategically about China, or to negotiate a complicated piece of bipartisan legislation, is not the limit of politics. It’s not enough to deliver technocratic accomplishments or to prudently manage a chaotic global scene—a politician must also connect with the voters, and convince them that they’re in good hands. And the Biden presidency has always required explaining away the fact that the public wasn’t buying what he was selling, even when the goods seemed particularly attractive. [my emphasis]

The noxious NYT op-ed calling on Biden to step down because he doesn’t do their job well enough is likewise focused on Biden as campaigner.

The president appeared on Thursday night as the shadow of a great public servant. He struggled to explain what he would accomplish in a second term. He struggled to respond to Mr. Trump’s provocations. He struggled to hold Mr. Trump accountable for his lies, his failures and his chilling plans. More than once, he struggled to make it to the end of a sentence.

Mr. Biden has been an admirable president. Under his leadership, the nation has prospered and begun to address a range of long-term challenges, and the wounds ripped open by Mr. Trump have begun to heal. But the greatest public service Mr. Biden can now perform is to announce that he will not continue to run for re-election.

As it stands, the president is engaged in a reckless gamble. There are Democratic leaders better equipped to present clear, compelling and energetic alternatives to a second Trump presidency. There is no reason for the party to risk the stability and security of the country by forcing voters to choose between Mr. Trump’s deficiencies and those of Mr. Biden.

[snip]

[T]he United States needs a stronger opponent to the presumptive Republican nominee. To make a call for a new Democratic nominee this late in a campaign is a decision not taken lightly, but it reflects the scale and seriousness of Mr. Trump’s challenge to the values and institutions of this country and the inadequacy of Mr. Biden to confront him.

And it makes sense. As I argued, when Biden responded to a focus on his age in January, he correctly said he was doing one amazingly taxing job well, that of being President. But in recent weeks, he has also been in the thick of an equally taxing job, flying around the country and glad-handing potential voters, many of whom carry germs that don’t normally make their way into the Oval Office. He has also had the stress of his son getting convicted in a trial that would never have happened if he weren’t the son of President Joe Biden. This is best understood, in my mind, as a question about whether Biden can do the two jobs required of him.

Aside from his Israeli policy, Biden is, most Democratic voters (and even NYT’s editorial board) will concede, a remarkably successful President. Via whatever means, he has managed to do that job well, even at the ripe age of 81.

If he’s doing his day job well but there are questions about whether he has the stamina to do a second full-time job on top of the first one, the answer is not to send him out to pasture on both.

This is a perceived or real stamina problem, not — at least thus far — a competence problem.

Which means there’s no reason to create another succession crisis in an attempt to save democracy.

The goal here is not just to prevent Trump from winning the election. The goal is to prevent Trump from attaining the Presidency again, via whatever means he plans to pursue. And for that reason, it is highly unwise to add points of potential failure he can exploit where, thus far, there are none.

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NYT 2016: “But Her Emails” NYT 2024: “But His Debate”

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

Remember back in 2016 when Hillary Clinton’s emails were all The New York Times could write about? Flooding its front page instilled FUD – fear, uncertainty, and doubt, a well-known and frequently used tactic to undermine opposition.

(source: Vox, Study: Hillary Clinton’s emails got as much front-page coverage in 6 days as policy did in 69)

That. We’re watching a reprise of a FUD flood right now, this time with NYT’s uppermost management in on the effort.

In 2016 it was so bad it became a joke memorialized as a meme.

That was then, this is now. Welcome to NYT’s 2024 election FUD operation: “But His Debate.”

~ ~ ~

LOLGOP pointed out how bad the NYT’s front page was in a Mastodon post:

It’s far worse than LOLGOP shared, because the editorials also hammer on Biden’s debate performance:

Recall how the media bleated on for months about Clinton’s emails and how later after investigation her emails were a nothing burger. All that NYT energy trying to make fetch happen; but fetch wasn’t Clinton being prosecuted but losing her race to Trump

You can expect the same thing from here on forward, the entire NYT once again focused on making fetch happen.

Meanwhile, the one man crime spree goes on. Former Assistant AG for New York State and MSNBC commentator Tristan Snell nailed it:

This is what the NYT’s front page looked like the day after a Manhattan jury found Trump guilty on felony charges:

Two stories. That’s it. Nothing the day before about the trial.

NYT’s Editorial Board published an op-ed – Donald Trump, Felon – in which the NYT made no call for Trump to step down as the GOP candidate.

This is the last graf from that op-ed which summarizes the trial and the editorial board’s opinion:

In the end, the jury heard the evidence, deliberated for more than nine hours and came to a decision, which is how the system is designed to work. In the same way, elections allow voters to consider the choices before them with full information, then freely cast their ballots. Mr. Trump tried to sabotage elections and the criminal justice system — both of which are fundamental to American democracy — when he thought they might not produce the outcome he wanted. So far, they have proved resilient enough to withstand his attacks. The jurors have delivered their verdict, as the voters will in November. If the Republic is to survive, all of us — including Mr. Trump — should abide by both, regardless of the outcome.

That’s it. It’s on us, the voters. Don’t expect the NYT to sully itself with informing voters about candidate’s policy positions, they’ll be too busy trying to tank Biden’s candidacy for re-election.

~ ~ ~

It’s nearly impossible at this point to come to any conclusion except that the NYT has been and remains in the tank for Trump based on its history of coverage of Trump and his opponents Hillary Clinton in 2016 and Biden in 2024.

This POS from October 2016 is still incredibly offensive:

We already lost a far better POTUS in 2016 with NYT’s help, resulting in the loss of many American lives thanks to Trump’s corruption and incompetence.

Now we may lose a candidate for re-election who’s managed to fix many of the fuck-ups Trump generated, who’s ensured the U.S. economy has thrived in spite of pandemic pressures.

It’d be laughable if the stakes weren’t so high.

Trump’s engaged in criminal behavior which included not only trying to overthrow an election but the willful unlawful retention of classified materials including national defense information?

NYT: *yawn*

Trump says he wants to be a dictator on Day One, ordering a concentration camp for undocumented immigrants?

NYT: *bigger yawn*

Biden, suffering from a cold, has a poor showing at the first debate?

NYT: Oh we can’t have that! Biden must step aside!

I really thought it was the Washington Post which was racing to the basement with its hiring of Will Lewis and abortive hiring of Robert Winnett.

Nope. WaPo has nothing on the NYT.

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Joe Biden: Three Weeks and Four Months

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I didn’t watch the full debate, yet, though I’ve seen a few clips. In the clips I’ve seen, Biden responded to Trump’s false claims by simply observing he lied, rather than explaining why and how he does.

I may not watch much more — it’s clear no pundit thinks Biden did well, and his performance overshadowed Trump’s own terrible performance. That may not be how all viewers see it: in the Univision focus group, for example, undecided voters said that Biden, though he spoke slowly, appeared presidential. But pundits are going to drown out what actual voters think and focus on what they think.

I don’t know whether this will affect the race. I don’t know whether Biden will heed calls to drop out. Biden is doing great at a rally in North Carolina, but both Hakeem Jeffries and Nancy Pelosi have made comments that make it clear serious discussions are going on. I keep coming back to this: Biden flubbed the abortion answer last night. That’s the minimum necessary required for any Democrat this year, as every Democrat in the House knows well.

I wanted to lay out two thoughts that may be a useful way of discussing the issue: about three weeks and four months.

When Biden was asked whether he would drop out earlier in the year, he responded by saying he believed he had the best shot of beating Trump. He also responded that his age was not hindering his ability to do the job. Even given his low poll numbers, those claims were nevertheless true, in part because everyone’s poll numbers suck and he has had surprising success, as measured against recent Presidents, in his presidency.

But at that point — in the weeks leading up to the State of the Union, for example — he was largely doing one job, that of President.

In the past three weeks, during a period that (Republicans have gloated) he was largely holed up at Camp David, Biden has been engaged with four really stressful efforts:

  • At the G7 he had to play leader of the liberal world at a time when US power (and democracy generally) is waning, in large part because Americans are abandoning it, for good and ill
  • He had to be President at a time when state and Congressional Republicans and SCOTUS MAGAts have pursued US failure rather than permitting any Biden success
  • He did a lot more retail campaigning than he had been doing, adding not just to his physical stress, but exposing him to a far greater soup of germs than he normally is
  • His kid was convicted in a trial that not only laid bare what a cost Joe’s political career has been on his family, but that would, without question, never have happened if his son were not the son of President Joe Biden

I raise this not to offer excuses. Biden had the stamina to fulfill what the Presidency required of him leading up to the SOTU. But the last three weeks have added a number of additional stresses. I would be unsurprised if, in ten days or ten years, we learned the cold offered as an excuse last night by some Biden supporters was revealed to be something more.

Still, such a haystack of stresses is the job of being US president. The extremism of Republicans is different, in degree, than in the past, but they’ve been hyper-partisan since Reagan. And only the decades-long effort to target the Clintons the campaign rivals the unrelenting campaign against his son. But it’s a stressful job and the last three weeks have been particularly stressful, politically, physically, and personally.

Whether or not Biden stays in the race, he will likely to make that decision based on the same question he did earlier in the year: Does he believe he has the best shot at beating Trump? Does he have the stamina to do the job?

Maybe the last three weeks have or will change Biden’s mind about those questions. Maybe they won’t. The question that will determine whether he stays in the race remains the same, but the circumstances could change the answer.

Now consider that this happens more than four months before the election.

Did you know that civilized countries (and nascent fascist countries led by megalomaniacs) run entire elections in a fraction of that time?

As noted above, at least one focus group of undecided Latinos said the debate will lead them to vote Biden, not Trump. Short of catastrophic medical event, there is no chance Trump will be replaced. There is no chance that Trump will become anymore likeable, honest, or coherent. If someone besides Biden had four months to capitalize on his negatives, it might flip the table. It would eliminate the double haters election. If someone named Biden found a way to make Trump’s malice matter more than his stammer, it might well matter.

Joe Biden has a choice to make about whether he remains the best shot to beat Donald Trump. And one way or another, Republicans will be stuck with a candidate who vigorously acts unpresidential.

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Aileen Cannon Confesses She’s Unable to Distinguish between Golf Balls and Nuclear Weapons

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Depending on how you count, Aileen Cannon issued three or four decisions yesterday.

The most telling is an order letting Trump have a mulligan on whether his false attacks on the FBI pose a danger to society.

As Jack Smith’s team described in a filing, after a hearing on the matter on June 24, Judge Cannon permitted more evidence of what a menace Trump is, but ordered no additional briefing would be permitted.

During the hearing on June 24, 2024, the Court discussed with the parties (Hearing Transcript 6/24/2024 at 27) the potential need to supplement the evidentiary record regarding the Government’s Motion to Modify Conditions of Release, ECF No. 592. After the conclusion of the hearing, the Court issued a minute order setting the schedule and resolving the issue that the Court and the parties had discussed regarding the need for additional briefing. The minute order states: “Consistent with the instructions provided in open court, the evidentiary record on this Motion will be open until June 26, 2024, for the parties to file any additional evidentiary attachments/exhibits in support of, or in opposition to, the Motion 592. Any attachments/exhibits shall be docketed as a “Notice of Filing” (separated by exhibits) and limited to specific evidentiary submissions only. No additional briefing will be permitted.”

But then on Wednesday, Smith’s team brought out a bazooka, providing all the records showing Trump poses a threat to society (which I’ve linked below).

In advance of that, when Trump submitted a bunch of exhibits that seem totally off point, they requested leave — in two weeks — to say more.

President Trump respectfully requests leave to file a response to the expected Notice to be filed tonight by the Special Counsel’s Office. See 6/24/2024 Tr. at 27 (“If the defense requests an opportunity to file additional briefing, then you should make that very clear in — in any response that you file to the motion for additional evidence.”). The defense conferred with the Special Counsel’s Office today and understands that the Special Counsel intends to file numerous exhibits not previously relied upon in seeking its Motion for Modification of Conditions of Release. President Trump respectfully requests two weeks to file a response to the newly submitted evidence.

So Judge Cannon pinky swore, invented a reason to retract one of the only definitive orders she issued against Trump, and created another five weeks of delay over the question of whether Trump is a menace.

PAPERLESS ORDER: In light of the extensive, newly submitted materials filed by the Special Counsel and Defendant Trump in support of and/or in opposition to the Special Counsel’s Motion to Modify Conditions of Release 592, the Court will permit the parties to file one final supplemental brief in response to those newly submitted materials, not to exceed 10 double-spaced pages, on or before July 5, 2024. The Court takes note of the additional court orders included in composite exhibit 11 to the Special Counsel’s recently filed Notice 652 . Consistent with the Court’s statements during the July 25, 2024, afternoon hearing 649, the Court will consider such orders as cited legal authority on the Motion, not as part of the developed evidentiary record in this proceeding, and not for the factual findings set forth in those separate proceedings. The evidentiary record on the Motion is closed. Absent leave of Court, no further exhibits shall be attached to the authorized final supplemental briefs.

Cmon Aileen. You just gave this man five weeks to declare that his own texts aren’t what his own texts say.

At this point, journalists covering Judge Cannon need to put aside all pretense of normality, all pretense that one or another decision will doom Jack Smith’s case (never mind that what they often say misunderstands the evidence). That’s a category error.

That’s true because, the way things are going, this thing will never go to trial. And it’s also true because puff coverage of the actual substantive filings does nothing to rebut the very intentional propaganda that this effort is designed to generate, but only serves the cause of using this case to discredit rule of law and reality.

Which brings me to the other quasi-decisions Judge Cannon made yesterday.

On paper, she denied Trump a Franks hearing for his claim that the warrant to search his beach resort in any way lacked probable cause, dismissing one after another thing that Trump argued should have been included in the affidavit (and debunking that several were, as Trump claimed, misrepresentations).

Except for the last one. Judge Cannon ruled that a warrant searching a home for documents with classification markings and Presidential Records Act documents didn’t have anything to do with probable cause.

The final cited omission concerns the absence of a definition of “personal records” under the Presidential Records Act (PRA) and related caselaw on a former President’s authority to designate records as “personal” under that Act [ECF No. 566 p. 9 (citing Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288, 300–304 (D.D.C. 2012))]. According to Defendant Trump, the affidavit offered the reviewing magistrate some guidance on the relevant legal statutes and definitions, including the definition of “Presidential records” under the PRA, but it did not include a definition for “personal records” under the Act, which is “significant” in light of the affiant’s decision “to include caselaw regarding the NDI [national defense information] element [in 18 U.S.C. § 793(e)]” [ECF No. 566 p. 9 (referencing ECF No. 566-2 p. 27 ¶ 60 & n.2)]. As with the earlier items in the Franks request, the Motion fails to explain how inclusion of more legal provisions or supporting caselaw on a contested legal question such as the applicability of the Presidential Records Act would have defeated probable cause given the content of the affidavit. Nor does the Motion offer legal authority to suggest that inclusion of further discussion in the affidavit of a potential affirmative defense was legally required to be included as a matter of the Fourth Amendment.

But it did have to do with whether the particularity of Attachment B of the warrant was sufficient, which question she will hold — you guessed it — a hearing on!

To be sure, the Special Counsel raises compelling arguments that Attachment B satisfies the Fourth Amendment’s particularity requirement given its reference to “classification markings” and “classified material” in certain subparagraphs of that document [see ECF No. 567]. But the Court determines that some of the terms in that document (e.g., “national defense information” and “Presidential Records”), do not carry “generally understood meaning[s]” such that a law enforcement agent, without further clarification, would have known to identify such material as “seizable” property pursuant to Attachment B. Wuagneux, 683 F.2d at 1350; [see ECF Nos. 325, 377, 398, 402, 444 (briefing and argument on the term “national defense information”)].6 This argument also relates to Defendant Trump’s claim that searching agents had impermissible discretion in executing the search because of the ambiguity of “certain terms on the illustrative list in the warrant’s subparagraphs” [ECF No. 566 p. 13]. Under these circumstances, even accepting the need for practical flexibility in weighing particularity challenges, the Court is satisfied that further factual development is warranted related to Defendant Trump’s particularity challenge as to Attachment B. 7

This is yet another attempt, by Cannon, to undermine what really are accepted definitions, because it hurts her feelings that she ruled differently in September 2022 and the 11th Circuit reversed her, soundly.

Put another way, though, Judge Cannon is making the argument that FBI agents can’t distinguish between golf balls and documents about nuclear weapons — a distinction that agents who conducted the search seem to have had no problem with. To prove that this is a problem, you would need to prove that any single box was seized with nothing that was obviously covered by the Presidential Records Act.

The part of this order that got far more attention than it merits, however, is that Judge Cannon also granted Trump another hearing on whether Beryl Howell ruled that Trump’s efforts to get Evan Corcoran to conduct an inadequate search merited a crime-fraud exception.

Much of that part of the decision is whiny insistence from Judge Cannon has the authority to revisit Judge Howell’s decision. She does!

Where it gets hysterical is where, almost a year of time-wasting after the indictment, Cannon tries to deny this is not about resource and time wasting.

This is not to say that the necessary evidentiary suppression hearing will devolve into a “mini trial,” as the Special Counsel suggests. The concern about crime-fraud “mini-trials” has been expressed by courts in the grand jury context, e.g., In re Grand Jury Investigation, 842 F.2d at 1226, and it makes sense that such a concern reasonably would apply in the post-indictment context, too, at least in a general way. But there is a difference between a resource-wasting and delay-producing “mini-trial,” on the one hand, and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress, on the other. More practically, the parties can meaningfully confer beforehand on the scope and timing of the hearing, raising appropriate objections with the Court as necessary; the parties can (and will) file exhibit and witness lists as is customary in federal criminal suppression litigation; and the Special Counsel can request the Court to impose reasonable limitations on the evidence produced to ensure efficiency and control. So too, for example, would it be appropriate to submit as an exhibit to the hearing the transcript of the District of Columbia grand jury proceeding (not yet received by this Court); any attachments already filed in connection with the Motion in this Court or in the grand jury proceeding; and any evidence submitted for review by the court that oversaw the grand jury proceeding (it appears no such exhibits were presented, although the matter is unclear).5 But it is an evidentiary hearing nonetheless, and it is before this Court—in this post-indictment context— to make factual findings on contested questions pertinent to the second prong of the crime-fraud exception.

Again, treating this as a serious legal opinion is a category error.

Aileen Cannon is sitting in her little court room in Fort Pierce denying the danger of Donald Trump — whether it involves storing nuclear documents under a Christmas pillow or whether it involves disseminating false claims about the FBI to people bound to respond with violence — all the while whining that her time-wasting is valuable.

Catalog of all the reasons Donald Trump is a menace

Exhibit No. 1: The Statements Giving Rise to the Motion to Modify Release Conditions— Trump’s Statements Alleging a Plan by the FBI to Kill Him and His Family in Connection with the August 8, 2022 Search of Mar-a-Lago

[link]

A. Trump Truth Social Post (May 21, 2024) [ECF No. 592-1]

B. Trump Fundraising Email (May 23, 2024) [ECF No. 592-2]

C. Trump Truth Social Post (May 23, 2024) [ECF No. 592-3]

D. Trump Truth Social Repost (May 24, 2024) [cited in ECF No. 592 at 7 n.3]

E. Trump Truth Social Post (May 25, 2024) [ECF No. 592-5]

Exhibit No. 2: Examples of Trump’s Surrogates Amplifying His Statements Alleging an FBI Plan to Kill Him

[link]

A. @patriottakes X Post Embedding Stephen Bannon Podcast Excerpt (May 21, 2024) [ECF No. 592-4]

B. @MZHemingway X Post (May 21, 2024)

Exhibit No. 3: Examples of Trump’s Statements Regarding the FBI

[link]

A. Trump Statement Regarding the Execution of the Mar-a-Lago Search Warrant (Aug. 8, 2022) [ECF No. 638-3]

B. Select Trump Truth Social Posts Regarding the FBI (Aug. 9, 2022 to June 9, 2023)

Exhibit No. 4: Examples of Threats Against the FBI Following Trump’s Statements

[link]

A. Select Ricky Shiffer Truth Social Posts (Aug. 9 to Aug. 11, 2022) [ECF No. 638-4]

B. In re: Search of Information Associated with Truth Social Profile with Username @rickywshiffer or Ricky Shiffer That is Stored at Premises Controlled by Truth Social, No. 1:22-mj-481 (S.D. Ohio Aug. 12, 2022; unsealed June 20, 2024) (Search Warrant Application) [ECF No. 638-1]

C. FBI Cincinnati Statement (Aug. 11, 2022; updated Aug. 12, 2022)

D. In re: Sealed Search Warrant, No. 9:22-mj-08332-BER (S.D. Fla. Aug. 22, 2022) (Order on Motions to Unseal) (highlighting added at 8-9)

E. United States v. Timothy Muller, No. 4:24-mj-479 (N.D. Tex. June 14, 2024) (Criminal Complaint) [ECF No. 638-2]

Exhibit No. 5: Examples of Trump’s Statements Regarding Judges and Court Staff

[snip]

A. Trump Truth Social Post (Aug. 4, 2023) [ECF No. 638-5] 1

B. Select Trump Truth Social Posts Regarding a United States District Judge for the District of Columbia Presiding Over a Criminal Case in Which Trump is the Defendant (Aug. 6 to Dec. 8, 2023)

C. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Civil Case Involving Trump (Oct. 28, 2022 to Nov. 29, 2023)

D. Select Trump Truth Social Posts Regarding a New York State Supreme Court Justice Presiding Over a Criminal Case in Which Trump is the Defendant (Mar. 26 to Apr. 30, 2024)

Exhibit No. 6: Examples of Threats Against Judges and Court Staff Following Trump’s Statements

[link]

A. United States v. Abigail Jo Shry, No. 4:23-cr-413 (S.D. Tex. Aug. 11, 2023) (Criminal Complaint)

B. Alan Feuer, Apparent ‘Swatting’ Incidents Target Judge and Prosecutor in Trump Election Case, N.Y. Times (Jan. 8, 2024)

C. Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (Affirmation in Opposition)

1. Ex. A: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (10/3/23 Trial Transcript)

2. Ex. B: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 20, 2023) (Other Order—Non-Motion)

3. Ex. C: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Oct. 26, 2023) (Other Order—Non-Motion)

4. Ex. D: State v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct. Nov. 3, 2023) (Supplemental Limited Gag Order)

5. Ex. E: Trump v. Engoron, No. 2023-05859 (N.Y. App. Div. Nov. 22, 2023) (11/21/23 Affidavit of Charles Hollon)

D. Peter Eisler, et al., Trump Blasts His Trial Judges. Then His Fans Call for Violence, Reuters (May 14, 2024)

Exhibit No. 7: Examples of Trump’s Statements Regarding Prosecutors

[link]

A. Select Trump Truth Social Posts Regarding the New York District Attorney (Jan. 31 to Mar. 24, 2023)

B. Select Trump Truth Social Posts Regarding the Fulton County District Attorney (Mar. 23 to Aug. 24, 2023)

Exhibit No. 8: Examples of Threats Against Prosecutors Following Trump’s Statements

[link]

A. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Feb. 26, 2024) (2/22/24 Affidavit of Nicholas Pistilli)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 21, 2024) (6/20/24 Affidavit of Nicholas Pistilli)

C. United States v. Craig Deleeuw Robertson, No. 2:23-mj-722 (D. Utah Aug. 8, 2023) (Criminal Complaint)

D. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Darin Schierbaum)

E. State v. Trump, No. 23SC188947 (Ga. Sup. Ct. Sep. 6, 2023) (9/5/23 Affidavit of Gerald Walsh)

F. United States v. Arthur Ray Hanson, No. 1:23-cr-343 (N.D. Ga. Oct. 25, 2023) (Criminal Indictment) Exhibit

No. 9: Examples of Trump’s Statements Regarding Potential Witnesses in the District of Columbia Case and Threats Following Trump’s Statements

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A. United States v. Trump, No. 1:23-cr-257 (D.D.C. Sept. 15, 2023) (Motion to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings)

B. Trump X Post Regarding a City Election Commissioner (Nov. 20, 2020) and Excerpt of the Commissioner’s Public Testimony Before the House Select Committee to Investigate the January 6th Attack on the United States Capitol (June 13, 2022)2

C. Trump Truth Social Post Regarding a Former Chairman of the Joint Chiefs of Staff (Sept. 22, 2023) [ECF No. 638-5]

Exhibit No. 10: Trump’s Awareness of the Link Between His Statements and His Followers’ Responses

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A. Select Trump Truth Social Posts (Apr. 4, 2024) [ECF No. 642, GX1]

B. Excerpt of Transcript of CNN’s Town Hall with Former President Donald Trump, CNN (May 11, 2023)

C. Trump Truth Social Post (Apr. 29, 2023) [ECF No. 642, GX2]

Exhibit No. 11: Relevant Court Orders Not Cited in the Government’s Pleadings

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A. United States v. Trump, No. 1:23-cr-257, ECF No. 124 (D.D.C. Oct. 29, 2023) (Opinion and Order)

B. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Mar. 26, 2024) (Decision and Order on People’s Motion for an Order Restricting Extrajudicial Statements)

C. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. Apr. 1, 2024) (Decision and Order on People’s Motion for Clarification or Confirmation of an Order Restricting Extrajudicial Statements)

D. People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. June 25, 2024) (Decision and Order on Defendant’s Motion to Terminate Order Restricting Extrajudicial Statements)

E. United States v. Taranto, No. 1:23-cr-229, ECF No. 27 (D.D.C. Sep. 12, 2023) (Order of Detention) (highlighting added at 4-6)

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