Judge AliKhan Didn’t Halt Trump’s Funding Freeze Alone, Democracy Forward Did Too

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Update: As Marisa Kabas and others have reported, OMB has rescinded the memo. Those involved here won this round.

Yesterday, just minutes after Trump’s freeze on a great deal of federal funding was about to go into effect, Judge Loren AliKhan ordered a temporary stay of Trump’s order — through Monday at 5PM — to consider a request for an emergency Temporary Restraining Order submitted in a challenge to the order. Here’s Judge AliKhan’s order halting Trump’s effort to steal money Congress ordered him to spend.

The Court orders an administrative stay through 5PM on February 3rd to maintain the status quo and allow for full consideration of Plaintiffs’ request for a temporary restraining order.

Here’s the CourtListener docket.

Because there’s a great deal of doomerism, because a lot of people spent yesterday wailing, “Why doesn’t anyone do anything,” I think it crucially important to lay out who did what, so people can understand the agency involved.

The plaintiffs in the lawsuit are, as described in the complaint, are:

National Council of Nonprofits (“NCN”) is the largest network of nonprofit organizations in North America, with more than 30,000 organizational members. National Council of Nonprofits (“NCN”) supports nonprofits in advancing their missions by identifying emerging trends, sharing proven practices, and promoting solutions that benefit charitable nonprofits and the communities they serve. (Here’s a flyer they did Monday on the impact of Trump’s Executive Orders and here is their core values page.) To the extent that journalists are giving credit (they’re not, except to Judge AliKhan), NCN will be the named plaintiff.

American Public Health Association (“APHA”) is a nonpartisan, non-profit organization that champions the health of all people and all communities; strengthens the profession of public health; shares the latest research and information; promotes best practices; and advocates for public health issues and policies grounded in scientific research. APHA represents more than 23,000 individual members, who reside in all 50 states, the District of Columbia, and Puerto Rico, and also has 52 state and regional affiliates. APHA is the only organization that combines a 150-year perspective, a broad-based member community, and the ability to influence federal policy to improve the public’s health. (Here’s their about page.)

Main Street Alliance (“MSA”) is a national network of small businesses, which represents approximately 30,000 small businesses across the United States. MSA helps small business owners realize their full potential as leaders for a just future that prioritizes good jobs, equity, and community through organizing, research, and policy advocacy on behalf of small businesses. MSA also seeks to amplify the voices of its small business membership by sharing their experiences with the aim of creating an economy where all small business owners have an equal opportunity to succeed. MSA’s small business members compete for and receive various forms of what is broadly defined as “federal financial assistance,” including funding in the form of grants, loans, and loan guarantees. Members also benefit directly from other recipients of federal financial assistance being able to purchase goods and services from them as a result of federal programs. (Here’s their about page.)

SAGE is a New York nonprofit corporation. SAGE is dedicated to improving the lives of lesbian, gay, bisexual, and transgender adults.

Note, I’ve lifted this language directly from the complaint, which emphasizes that this battle pits an organization that tries to help non-profits work effectively and another that supports public health professionals, along with a number of small businesses. There’s an LGBTQ group in there, which (along with some services provided by the APHA) supports a First Amendment challenge to the way the OMB member specifically targeted “transgenderism.”

The Memo purports to pause all disbursements through federal financial assistance programs pending a “review” to determine whether they are “consistent with the President’s policies” as expressed in several executive orders, such as one announcing that “[f]ederal funds shall not be used to promote gender ideology.” The Memo further indicates that the review should identify recipients of federal funding that “advance Marxist equity, transgenderism, and green new deal social engineering policies.”

But even the lawsuit also focuses main street stuff, like keeping small businesses afloat. This group of plaintiffs were presumably chosen to represent both interests that matter to right wingers, but also interests that have a specific complaint based on the way OMB wrote its memo (particularly its focus on Trans people).

Importantly, these groups have legal standing (because they get federal grants); members of Congress do not, which is one of several reasons why civil society is leading this fight. Here’s how the complaint describes NCN’s injuries arising from the halt in funding.

Many of NCN’s members rely on federal grants and financial assistance to serve their missions, from supporting research and services to those with cancer and other serious diseases, to assisting people in escaping domestic violence, to providing mental health care and suicide hotlines. Federal grants and financial assistance are the lifeblood of operations and programs for many of these nonprofits, and even a short pause in funding—which, for many NCN members, is already in the pipeline—could deprive people and communities of their life-saving services. Nonprofits often make budget decisions two to five years in advance, and they make business decisions based on expected cash inflow just as any for-profit enterprise would: making staffing decisions, setting organizational priorities, providing essential services and programs, and identifying and working towards fundraising goals. They rely on federal funds to fund entire programs, including salaries. Halting this funding would lead to pauses of important community programs, food and safety assistance, and lifesaving research, among other things: even a short pause could be devastating, decimating organizations, costing lives, and leaving neighbors without the services they need.

Finally, the real agency here: The suit was filed by Democracy Forward, which is in the business of litigating on issues like this. Here’s their client list. In other words, this is a lawsuit brought by a legal organization that found plaintiffs who’ll well represent the harm that cutting of federal funding will do to America, and do so in ways that personify what this attack is about.

Democracy Forward is part of a group, Democracy 2025, formed last year to challenge Trump’s assault on democracy.

So the plaintiffs are here because they have standing and because they’ll be able to tell compelling stories about the injury they’ve suffered. Democracy Forward will be doing the heavy lifting of fighting this legally.

One reason I’m making this point is to emphasize the import of civil society, including groups that have been preparing for these legal challenges for months. As I and others have pointed out, the battle over fascism often centers on the battle over pre-existing networks of civil society, networks that often are not themselves political.

And sustain or build your networks. Not just your political networks, the folks with whom you’ve worked to try to elect Kamala Harris or restore reproductive rights. But your other networks, too. Sometimes, after fascists break political networks, it’s the choirs or the knitting clubs where civic discourse can regrow.

The very first thing authoritarians try to break are the networks of civil society, because isolated people are easier to terrify. So make sure yours are as strong as they can be before the wrecking crew comes.

Here, civil society stood up, asserted its membership in a society linking small businesses in rural communities to aging LGBTQ people, and succeeded, for now, in pausing Trump’s attack on parts of civil society that Russ Vought and Acting OMB Director Matthew Vaeth are attacking.

In those moments you’re feeling particularly helpless, you might focus your energy on shoring up the strength of civil society within your own local community, even if it’s no more than the knitting club.

It is likely auspicious that Judge AliKhan — a recent Biden appointee who worked for years as an Attorney for District of Columbia — was randomly assigned to the case. But all she has done, so far, is preserve the status quo. The NGOs, from the service providers to the lawyers, are the people who scrambled to prevent the implementation of the order last night at 5PM.

One more point about agency. The lawsuit cites to the copy of the memo published by WaPo in its story on the halt. But as WaPo credited, it was not the first to report on the memo; independent journalist Marisa Kabas first posted it on Bluesky.

Things are definitely dire. But there are people — from journalists to NGOs to lawyers — who are doing their jobs to push back against Trump’s authoritarian attack. And it’s important to see that NGO networks are one of the most important bulwarks against such authoritarian attacks.

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Confirming Kash Patel Will Get Senators “Drug through the Streets”

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When Kash Patel boosted the J6 Choir claiming the video of those housed in DC Jail in March 2023 was proof of a two-tier system of justice, he was suggesting that someone who brought a crowbar — which he called a “weapon” — to the Capitol while promising to drag members of Congress through the streets, then assaulted cops protecting Congress, should not be detained while awaiting trial for assaulting cops.

That’s the significance of Ryan Nichols’ inclusion in the footnote Jack Smith put in his report, listing the identities of some of the J6 Choir members Trump had endorsed.

Nichols was in jail because of the threats he posed to members of Congress.

I’m hearing that Pence just caved. I’m hearing reports that Pence caved. I’m telling you if Pence caved, we’re gonna drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets. Because we’re not going to have our fucking shit stolen. We’re not going to have our election or our country stolen. If we find out you politicians voted for it, we’re going to drag your fucking ass through the streets. Because it’s the second fucking revolution and we’re fucking done. I’m telling you right now, Ryan Nichols said it. If you voted for fucking treason, we’re going to drag your fucking ass through the streets. So let us find out, let the patriots find out that you fucking treasoned this country. We’re gonna drag your fucking ass through the street. You think we’re here for no reason? You think we patriots are here for no reason? You think we came just to fucking watch you run over us? No. You want to take it from us, motherfucker we’ll take it back from you.

And even then, he didn’t remain in prison for the period before he pled guilty.

Nichols challenged his treatment in the DC jail, complaining about the seizure of his discovery and claiming that his incarceration was exacerbating his known PTSD diagnosis. He was further involved in an altercation in September 2022, after which he was segregated, then moved to another facility. He had repeated diagnosis issues with his health care. So in November 2022, Judge Thomas Hogan released Nichols from custody, and he remained out until he pled guilty on November 7, 2023.

But ultimately, Reagan appointee Royce Lamberth sentenced Nichols to what would have been three more years in prison — a total of 63 months and (because Nichols refused to cooperate with Probation on his finances) a record $200,000 fine, one the pardon will presumably wipe away entirely.

Nichols blamed his untreated PTSD for his actions. But Nichols’ sentencing memo revealed a 2019 arrest for assault causing bodily harm that resulted in diversion, one that belies his defense attorney claim he had never been violent before January 6. And prosecutors’ sentencing memo raised all the conspiracy claims Nichols made — many of the same claims that Kash Patel has made about him and others — raising some question about his remorse for his actions.

In addition, although Nichols “agreed with the conduct described in the Statement of Offense” in his presentence interview, PSR ¶ 50, in a post circulated after the plea hearing, members of Nichols’ defense team refers to him as a “political prisoner.” Exhibit J (Substack blog post authored by defense team law clerk present at counsel table for the plea hearing titled “Ryan Nichols: Political Prisoner Of His Own Country”); see also Exhibit K (GiveSendGo page titled “Free My Patriot Prisoner” with messages attributed to Nichols, his wife, and his father prior to the defendant’s plea). Even prior to Nichols entering his plea, his attorney was tweeting statements that directly contradicted the statement of offense in this case. See Exhibit M (October 30, 2023, twitter post from Nichols’ lead counsel).12 These statements threaten “public trust in the rule of law and the criminal justice system [, which] is paramount in the context of January 6 cases.” United States v. Nester, 22-cr-183 (TSC), ECF No. 113 at 6 (internal citation omitted). While the government does not attribute counsel’s statements to the defendant himself (nor does it base its recommendation on such bombastic rhetoric), this Court must appropriately assess whether the defendant has independently accepted responsibility for his criminal conduct. Pleading guilty is not simply the same as accepting the consequences and showcasing remorse under these trying and unique circumstances.

12 The government also notes that, in the months leading up to his plea, Nichols was claiming in public court filings that, in effect, “shadowy teams of plainclothes government agents orchestrated the attack [on the Capitol], leaving a far larger number of innocent Americans to take the fall.” ECF 266 (Order Denying Defendant’s Motion for Disclosure) at 13; see also ECF 244 (Motion for Disclosure), 245 (Supp. Motion for Disclosure), and ECF 251 (Reply to Government’s Opposition to Motion for Disclosure)

The sentence Judge Lamberth imposed in May 2022, 63 months, was about 75% of the government ask of 83 months. While Nichols had a lot of heartfelt things to say about his actions, Judge Lamberth noted that Jan6ers had repeatedly reneged on their statements of remorse, which the recent statements laid out in the government sentencing motion addressed.

Importantly, Nichols himself noted that the solitary confinement to which he was subjected was a COVID protocol, not anything specifically targeting Jan6ers.

I spent months in solitary confinement for 23 to 32-plus hours at a time due to COVID protocols, only allowed out for one hour to shower or make a phone call just to be locked in that 10-by-7-foot cell for another 23 to 32-plus hours at a time. Mental torture is an understatement. I heard grown men screaming and crying out for their mothers, me included. Many nights, I cried myself to sleep. With no court dates, no discovery, and no ending in sight, I felt hopeless and my mental health spiraled out of control. Eventually, I decided that, maybe, I needed to seek professional help. I put in a mental health request, and two weeks later I was back on Zoloft. Though this certainly helped control my mind and get my emotional imbalance in alignment, the solitary confinement was still overwhelming.

And he expressed empathy with the incarceration of people of color.

Your Honor, I know, after almost two-and-a-half years of incarceration, how terrible jail and prison is. The entire atmosphere is violent, dark, and unforgiving. For the majority of my life, I’ve heard, but never been able to empathize with, people of color when they testified to the harsh environment and treatment within the jail and the prison system. Make no mistake, I am now a witness to their testimony. Being in jail and prison is a living hell of eternal separation from the light. Sometimes it feels like not even God himself can penetrate those walls.

Nichols’ PTSD and other maladies did make incarceration onerous. The DC jail treated him just as shitty as it treats everyone else. And he was released because of it.

But that’s not a proof of a two-tier system of justice. That’s proof that America’s prisons suck, and that Jan6ers had more success in using that to get released than others.

Ultimately, though, Patel is claiming that one can get in your truck with guns in the back, drive to DC, threaten to drag people like Lindsey Graham and Chuck Grassley through the streets because they certified Joe Biden’s win, spray cops with toxic chemicals, and then call on the mob to grab more weapons to break into the Capitol, and not be assigned to pre-trial detention. That’s what Nichols did: He directly threatened Senators, both Republicans and Democrats. The notion that Nichols was improperly detained suggests one can assault cops after threatening the members of Congress they’re protecting with impunity.

And that’s what the aspiring FBI Director has said: that people can threaten to assault the very people who are rushing to confirm him with impunity.

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After Yesterday’s DOJ Purge, Pam Bondi Cannot Fulfill Promises Made at Her Confirmation Hearing

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Among the many things that happened in the ongoing DOJ purge was the reassignment of DOJ’s top career official, Brad Weinsheimer, to Trump’s sanctuary cities task force.

The department’s most senior career official, a well-respected department employee responsible for some of the most sensitive cases, was reassigned to a much less powerful post.

Were that official, Bradley Weinsheimer, to remain as the associate deputy attorney general, he would have handled critical questions about possible recusals — a thorny issue for a department that will soon be run by a number of Mr. Trump’s former lawyers.

[snip]

Like many of the other officials who have received transfer emails, Mr. Weinsheimer has been given the option of moving to the department’s sanctuary cities task force — an offer seen by some in the same situation as an effort to force them into quitting.

Mr. Weinsheimer, a respected veteran of the department for three decades, played a critical role under multiple administrations, often acting as a critical arbiter of ethical issues or interactions that required a neutral referee.

He was appointed to his current role on an interim basis by Attorney General Jeff Sessions in July 2018 during Mr. Trump’s first term, a move that was made permanent by one of his successors, William P. Barr.

Mr. Weinsheimer also served four years in the department’s Office of Professional Responsibility, which investigates complaints about prosecutors. An email to his government account was not immediately returned.

I’ve written about the key role Weinsheimer has played here.

In response to a question from Dick Durbin about her lobbying for Qatar (which she did not disclose as a potential conflict to the committee),

If there are any conflicts with anyone I represented in private practice, I would consult with the career ethics officials within the department and make the appropriate decision.

When Durbin asked if she would face a conflict with private prison contractor GEO, Bondi again said she would “consult with the career ethics officials within the Department of Justice and make the appropriate decision.”

But now the DOJ purge has made that impossible. Weinsheimer will be stuck prosecuting Chicago officials somewhere, and someone hand selected will take his spot.

In Bondi’s case, it won’t matter. She is, at least, qualified for the job, unlike so many of Trump’s other nominees.

But a key promise she made in her confirmation hearing just became meaningless.

Update: Fixed my typo to state correctly that it will be impossible for Bondi to keep her promise.

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

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CNN didn’t mention it.

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

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

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

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

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

None of these outlets mentioned DC Circuit approved the application.

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

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

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

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

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

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Stephen Miller Confesses that Trump Lied about Immigrants

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After getting caught boasting last week because ICE was detaining the same number of people as Joe Biden’s Administration, the Administration has now imposed quotas — demanding that ICE arrest up to 1,500 migrants a day, which WaPo may have been the first to report.

Johnny Maga, a far right propagandist who never tires of looking like a stupid idiot, reported that with great excitement. Quotas!!!

Not so Stephen Miller. He got pissy that WaPo described, in both the subhed and in paragraph after paragraph of the report, that this will lead ICE to arrest non-criminals. Here’s how WaPo described the problem.

The orders significantly increase the chance that officers will engage in more indiscriminate enforcement tactics or face accusations of civil rights violations as they strain to meet quotas, according to current and former ICE officials.

[snip]

Neither ICE nor Homan responded to requests for comment. After an earlier version of this article was published, White House press secretary Karoline Leavitt said in an email that, “your story is false,” but did not reply when asked for specifics.

[snip]

But Paul Hunker, a former ICE chief counsel in Dallas, said arresting serious offenders takes time, staff and planning — more time than quotas might allow.

“Quotas will incentivize ICE officers to arrest the easiest people to arrest, rather than the people that are dangerous noncitizens,” said Hunker, who, as the agency’s chief counsel in Dallas, oversaw offices in North Texas and Oklahoma from 2003 through January 2024.

Fox, in its story lifting the WaPo story (with attribution but not a link), instead provided paragraph after paragraph providing excuses.

As CATO reported recently, this is what happened last time: Trump focused so much on asylum seekers, he left criminal aliens to roam free.

Candidate Trump’s “mass deportation” agenda will make the country less safe in two significant ways. First, it would remove a population that is less likely to commit crimes, ultimately making America’s neighborhoods less safe. For instance, Cato’s research has shown that both legal and illegal immigrants are nearly half as likely to commit crimes for which they are incarcerated in the United States. With unique data from Texas, we have found that immigrants—both legal and illegal—are less likely to commit homicides. Numerous studies have also found that immigration is linked to lower crime rates, homicide rates, and drug-related deaths.

The second problem with mass deportation is just as significant: it would shift focus away from the removal of immigrants who do commit crimes. Noncitizens who commit serious crimes should be prosecuted to the fullest extent of the law and deported. Whatever amount the government spends on immigration enforcement, it should spend on detaining and removing this small minority of individuals. Donald Trump claims that he did that, but the facts tell a different story regarding his record on migrant criminals:

  • On his fourth day in office, Trump signed an executive order rescinding Obama-era policies that prioritized the detention and removal of serious public safety threats;
  • Within a few months, his administration was secretly separating families, using prosecutorial resources to jail migrant parents and focusing resources on visa overstays, not serious criminals;
  • During the height of family separation, Trump deprioritized prosecuting migrants with criminal histories to instead spend resources on separating families;
  • While Trump poured resources into detaining asylum seekers, he also released nearly 58,184 noncitizens with criminal records, including 8,620 violent criminals and 306 murderers;
  • ICE ended up (re)arresting nearly 11,000 noncitizens who entered under Trump and were convicted of non-immigration crimes, including rape and murder; and
  • Trump’s policies incentivized migrant criminals to enter, triggering a threefold increase in the number of convicted criminals attempting to cross the border illegally.

Miller predictably is already trying to spin the civil violation of illegal entry into a crime, to say nothing of paying Social Security that you’ll never get in return as a tax crime.

Which is what two experts told Axios would happen: Miller would have to falsely claim a larger pool of migrants are criminals because he falsely told stupid Trump voters there were more criminal aliens during the election.

What they’re saying: “There are not millions of people with criminal records to deport,” Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago, tells Axios.

  • Trump “keeps trying to bullsh-t with the public that there are all these particularly serious so-called criminals. There aren’t enough of those people to exist to be 1 million,” Karen Tumlin, director of the immigrant legal advocacy group Justice Action Center, tells Axios.
  • Both Hallett and Tumlin expect Trump to begin calling all undocumented immigrants “criminals” in order to say millions of criminals could be deported.

Remember, during the election Trump and Miller falsely claimed there were over 400,000 criminal aliens wandering around, when that stat primarily counts the number of people who are already safely housed in US prisons.

Former President Donald Trump is wildly distorting new statistics on immigration and crime to attack Vice President Kamala Harris.

Trump falsely claimed Friday and Saturday that the statistics are specifically about criminal offenders who entered the US during the Biden-Harris administration; in reality, the figures are about offenders who entered the US over multiple decades, including during the Trump administration. And Trump falsely claimed that the statistics are specifically about people who are now living freely in the US; the figures actually include people who are currently in jails and prisons serving criminal sentences.

“Kamala should immediately cancel her News Conference because it was just revealed that 13,000 convicted murderers entered our Country during her three and a half year period as Border Czar,” Trump wrote in one post on Friday, the day Harris visited the southern border in Arizona. Harris “allowed almost 14,000 MURDERERS to freely and openly roam our Country,” Trump wrote in another Friday post. They “roam free to KILL AGAIN,” he wrote, escalating his rhetoric, on Saturday.

Facts First: Trump’s claims are false in two big ways. First, the statistics he was referring to are not specifically about people who entered the country during the Biden-Harris administration. Rather, those statistics are about noncitizens who entered the country under any administration, including Trump’s; were convicted of a crime at some point, usually in the US after their arrival; and are now living in the US while being listed on Immigration and Customs Enforcement’s “non-detained docket” — where some have been listed for years, including while Trump was president, because their country of citizenship won’t let the US deport them back there. Second, that ICE “non-detained” list includes people who are still serving jail and prison sentences for their crimes; they are on the list because they are not being held in immigration detention in particular.

The new statistics, released by ICE in a letter to a Republican congressman this week, said there were 425,431 total convicted criminals on the non-detained docket as of July 21, 2024, including 13,099 people with homicide convictions.

Trump lied to his rubes, with the able assistance of his chief racism advisor. And now he’s struggling to assure his supporters he’ll deliver the eye-popping numbers he promised.

Which is why I’m laughing so hard at Johnny Maga.

Because even if Trump meets these quotas — quotas which will end up focusing on the law-abiding migrants rather than the dangerous people Miller has been wailing about — he’ll only deport 547,500 people this year, nowhere close to the mass deportations he sold his rubes.

You all lied. You lied and lied and lied to make voters afraid.

And already on day 8, you’re spinning wildly rather than simply admitting you cynically lied to gin up fear to get Trump elected.

Update: Greg Sargent discussed this at length in his podcast today.

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

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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.”

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Mike Johnson Let a Terrorist Roam the Capitol Yesterday

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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.

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Herod Goes to the National Cathedral and is Disappointed

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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 mile

It’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 way

Yes, 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.

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The Stephen Miller EOs

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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.

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