2024 Presidential Election Archives - Page 8 of 60

“Friendly to Us:” NYT Buries Its Own Role in Trump’s Attacks on Rule of Law

There comes a time in almost every Trump legal scandal where evidence comes out that Trump insiders believe they manipulated Maggie Haberman to serve Trump’s interests.

Evidence that both Roger Stone and Rick Gates used Maggie for various purposes came out in the Mueller investigation files, as when Gates claimed leaking Trump’s foreign policy speech to Maggie was a way to share it with Stone.

At Trump’s NY trial, Michael Cohen described how he deliberately misled Maggie about the nature of the payments he made to Stormy Daniels.

Perhaps the most damning example came in Cassidy Hutchinson’s testimony, where she described how, after her last appearance before the January 6 Committee while still represented by Stefan Passantino, he took a call from Maggie and confirmed that Hutchinson had just finished testifying to the committee.

His phone is ringing.

I look down at his phone. It’s Maggie Haberman calling him. And I looked at Stefan, and I said, “Stefan, did you tell Maggie Haberman that we were meeting with the committee today?”

And he’s like, “No, no. Maybe that’s not what she’s calling me about.”

And I said, “Stefan, did you tell Maggie that we were meeting with the committee today?

And he said, “No, no, but I should probably answer to see if she knows, right? I should answer.”

And said, “Stefan, no. I don’t think you should answer that call. She probably wants to know if we met with the committee today.”

He said, “Cass, I’m just going to answer. It will just be 2 seconds. I just want to find out what she’s going to talk to me about.”

He answers.

I can’t hear what she’s saying, but I hear Stefan say, “Yeah, yeah, we did just leave her third interview. You can put it out, but don’t don’t – don’t – don’t make it too big of a deal. I don’t think she’ll want it to be too big of a deal. All right. Thanks.”

And I said, “Stefan, was that Maggie Haberman asking about my interview?”

And he said, “Yeah, but don’t worry. She’s not going to make it a big deal.”

I said, “Stefan, I don’t want this out there.”

He said, “Don’t worry. Like, Maggie’s friendly to us. We’ll be fine.”

So I was just like, “Whatever.” I was annoyed.

Hutchinson went on to describe how, even as Passantino was discouraging Hutchinson from reviewing documents in a SCIF that would allow a follow-up appearance, Passantino and Alex Cannon spent the weekend talking to Maggie about Hutchinson’s testimony.

So I reached out to him on Monday, May 23rd: “Has [redacted] reached out about the SCIF?”

And then he was just kind of being wishy-washy with it.

He also let me know on that phone conversation that Maggie Haberman, quote, “got a story from the committee about my third interview,” end quote, and he spent he, Stefan, spent the whole weekend with Alex Cannon convincing Maggie Haberman not to publish the story that she got from the committee about my third interview.

Hutchinson described her particular disinterest in sharing her story with Maggie (and Josh Dawsey, another Trump whisperer).

And s0 now we’re moving into the phase of you know, I did my best throughout this whole period — I don’ like talking to reporters. Reporters would text me during this period. Ninety-nine percent of reporter texts always go unresponded to. I don’t like talking to reporters. I think there are some that I have, like, a friendship/working relationship with that I knew from being on the Hill and at the White House, but, like, Josh [Dawsey], Maggie Haberman, all those people, I stay very clear from.

But Josh [Dawsey], for example, had started reaching out to me and saying that he heard that the committee was in talks with Stefan about bringing me in for a SCIF interview and a live testimony; where did I stand on that with Stefan?

Say what you will about Maggie’s role in all this: Assuming it was her on Passantino’s phone (Hutchinson does not name the journalist in her book), she was just chasing a big story.

But there’s no doubt that one source of Hutchinson’s distrust of Passantino in the period leading up to her decision to get new lawyers stemmed from his willingness to share details of her testimony with Maggie — at least as she portrayed it — against her wishes.

“I don’t think you should answer that call,” Hutchinson said.

“Don’t worry,” the attorney representing Hutchinson but paid by a Trump entity said. “Like, Maggie’s friendly to us. We’ll be fine.”

None of that shows up in NYT’s faux savvy review of the game behind Barry Loudermilk’s referral of Liz Cheney for criminal investigation for allegedly intervening in Hutchinson’s legal representation at the time. NYT doesn’t bother to disclose to readers that, as Hutchinson described it, Maggie — who is bylined — played as significant a role in the breakup of the relationship between Passantino and Hutchinson as Cheney did.

Having failed to disclose Maggie’s alleged role in all that, here’s how — starting 28¶¶ in — NYT ultimately describes Loudermilk’s report and the claims within it.

The House report on Ms. Cheney, prepared by a Republican-led subcommittee on oversight, was specifically focused on the former representative, who broke with her G.O.P. colleagues over their ongoing support of Mr. Trump in 2021. But she has also infuriated Mr. Trump not only because she helped to lead the congressional investigation into him, but because she crossed party lines in the election and campaigned against him in support of Ms. Harris.

The report claimed that Ms. Cheney may have violated “numerous federal laws” by secretly communicating with Cassidy Hutchinson, a star witness for the Jan. 6 committee, without the knowledge of Ms. Hutchinson’s lawyer.

When Ms. Hutchinson was first approached to provide testimony to the committee, she was represented by a lawyer who had once worked in the Trump administration’s White House Counsel’s Office.

After meeting with Ms. Cheney, she hired a different lawyer and her subsequent public testimony was damaging to Mr. Trump. It included allegations that he had been warned his supporters were carrying weapons on Jan. 6, but expressed no concern because they were not a threat to him.

The report asked the F.B.I. to investigate whether Ms. Cheney’s dealings with Ms. Hutchinson were carried out in violation of a federal obstruction statute that prohibits tampering with witnesses. The report also accused Ms. Hutchinson of lying under oath to the committee several times and suggested that investigators examine whether Ms. Cheney had played any role in “procuring another person to commit perjury.” [my emphasis]

There’s a lot that’s misleading in this description. As I’ve noted, the section of the report describing DOD’s failures is actually longer (39 pages as compared to 36) than the section on Cheney and Hutchinson. Particularly given Loudermilk’s silence about Kash Patel’s role in what Loudermilk claims was DOD misconduct, to claim the report was “specifically focused” on Cheney is particularly misleading.

Maggie, writing with Alan Feuer, takes as proven the timeline Loudermilk lays out, which overstates what the evidence shows. While Cheney did communicate directly with Hutchinson, that was in June 2022, hours after Passantino had advised Hutchinson to take the “small element of risk to refus[e] to cooperate” with the committee any further in light of DOJ’s declination to press contempt charges against Mark Meadows. Hutchinson initiated the communication with Cheney and did so because, as she told Passantino, “I don’t want to gamble with being held in contempt.”

NYT asserts that what was damning about Hutchinson’s testimony after she ditched Passantino was Trump’s knowledge that people were refusing to go through magnetometers, but he wasn’t concerned because they wouldn’t hurt him. Hutchinson did tell that story publicly on June 28, 2022 (and J6C played earlier video testimony she had provided). But that thread of testimony started in her first interview in February 2022 and continued in her May 2022 interview, both of which Passantino attended. It all stemmed from texts she exchanged with Tony Ornato (texts that also make clear Trump “kept mentioning [a trip to the Capitol] before he took the stage” to give his speech).

To the extent this is among the things Loudermilk claimed Hutchinson lied about, Loudermilk’s case is based on word games, conflating formal intelligence with notice from Secret Service manning the rally that rally goers had (at least) flagpoles that were triggering the mags, misrepresenting a conversation Hutchinson claims she and Tony Ornato had with Mark Meadows, and ignoring that one of Ornato’s denials amounted to a claim he didn’t remember.

Plus, Hutchinson always emphasized that Trump’s concern was “get[ting] the shot,” packing enough bodies into the audience to make it look crowded, and not about ensuring that his supporters could keep their weapons before they marched to the Capitol. The claim that Trump knew his supporters were armed was legally damaging; it meant he knew the risk when he riled them up further about Mike Pence. But that’s not how Hutchinson spun it and it was testimony rooted in what she said in Passantino’s presence.

A reader might expect some assessment of Loudermilk’s claims in an article that boasts, as the headline of this does, that “Republicans Map a Case Against Liz Cheney.” No they didn’t. They floated a number of flimsy claims that don’t amount to a crime. You’re reporters. Act like it. Make that clear (as Philip Bump did here), rather than pretending Loudermilk’s claims aren’t mere whitewash.

The report neither links nor shows much understanding of the report itself. Even where it quotes lawyers about the viability of the charges, it doesn’t mention (for example) that the Jack Smith investigation resulted in a new Speech and Debate opinion that would apply to Cheney’s actions.

The real sin with the four-paragraph description of Loudermilk’s case, however, is one closely tied to Maggie’s own undisclosed role in it. NYT claims that Passantino was merely a former Trump White House Counsel. That’s not the issue. The issue, which goes to the core of the dispute and the reason Hutchinson replaced him, is that he was paid by entities associated with Trump, and Hutchinson came to believe he represented Trump’s interests over her own.

Loudermilk packages up as a crime actions Cheney took to give Hutchinson confidence her attorney was representing her interests, not Trump’s. Loudermilk packages up as a crime Hutchinson’s effort to avoid what even Passantino depicted as a risk of a contempt referral.

When Passantino told Hutchinson that it was okay for him to share information against her wishes because, “Maggie’s friendly to us,” was he also expecting that Maggie might misrepresent his role in all this (and leave his name unmentioned)?

That’s why you disclose such things.

The rest of this column (NYT bills it as analysis and claims the reporters who wrote it have “deep experience in the subject,” which is one way you might describe involvement in the story you’re telling) focuses on describing how delivering this report after Trump’s public demands, “reliev[es] Mr. Trump of the potentially fraught step of explicitly ordering the inquiry himself.”

A “friendly to us” reporter treats Trump’s word games as if they absolve him of responsibility.

¶¶4-14 describe Trump’s contradictory claims, including an uncorrected quote from Trump’s spox that “the nation’s ‘system of justice must be fixed and due process must be restored for all Americans.'”

¶¶15-23 describe Trump’s efforts to gin up investigations into his adversaries in his first term and going forward. The section includes multiple grossly misleading claims. First, it falsely insinuates that Trump never got the investigation of Hillary he demanded.

During his first presidential campaign, he often joined crowds at his rallies in chanting, “Lock her up!” — a reference to his opponent Hillary Clinton, whom he and other Republicans believed should have been investigated for using a private email server while she was secretary of state. After he won that election, however, Mr. Trump appeared to soften his stance, telling The New York Times editorial board that he did not want to “hurt the Clintons.”

But Mr. Trump, facing a special counsel investigation of his own, changed his mind again in 2018, telling his White House counsel that he wanted to order the Justice Department to investigate Mrs. Clinton.

[snip]

While the White House counsel ultimately declined to approve his plans to investigate Mrs. Clinton, Mr. Trump made clear on social media during his years in office that he believed various people should be prosecuted.

NYT simply ignores the Clinton Foundation investigation predicated in significant part on Bannon-associated oppo research that (as NYT reported) continued throughout Trump’s first term.

More problematic, given the suggestion that someone stopped Trump from getting a Special Counsel investigation into Hillary, it ignores that Special Counsel John Durham not only insinuated two false statement indictments against people associated with Hillary — both of which ended in acquittal — were conspiracies, but fabricated a claim about Hillary to which he dedicated an 18-page section in his final report.

NYT goes onto to — again — falsely suggest that Trump never got a special counsel investigation into Joe Biden.

Mr. Trump has called for Jack Smith, the special counsel who brought two criminal cases against him last year, to be “thrown out of the country.” And after he was arraigned on the first of Mr. Smith’s indictments, he said that, as president, he would appoint “a real special prosecutor” to “go after” President Biden and his family. (He has since backed away from his position on specifically investigating the Bidens.)

NYT’s “friendly” journalists would have you to believe they are ignorant that:

Trump extorted Ukraine for dirt on Hunter and Joe Biden
During Trump’s first impeachment, his personal attorney solicited such dirt from known Russian agents
Bill Barr set up a side channel via which Rudy could share that dirt obtained from Russian agents and others
Somehow, an FBI informant willing to frame Joe Biden came to share a claim that Mykola Zlochevsky bribed Biden that got laundered to the Biden investigation via that side channel
Trump spoke directly to both Barr and Jeffrey Rosen about the investigation into the Bidens
After David Weiss announced a plea deal with Hunter Biden, Trump attacked Weiss, contributing to threats against Weiss’ family
After Barr made public representations about the false bribery allegation, Weiss reneged on Hunter’s plea deal and obtained Special Counsel status and chased the bribery allegation, only to discover it was false

Trump already got his Special Counsel to investigate Joe Biden, and just in time for election season. And while it flopped when Weiss discovered Scott Brady’s vetting failed to find obvious problems with the bribery claim, it nevertheless led to felony charges against Hunter and a humiliating trial in June.

Suggesting Trump didn’t get a Special Counsel to investigate the Bidens is propaganda, just as suggesting he didn’t get one to pursue Hillary is.

But I guess that’s what Trump’s people know they’ll get when they work with a journalist “friendly to us.”

Barry Loudermilk Provides Proof of Kash Patel’s Incompetence Wrapped Up inside His Liz Cheney Referral

December 18, 2024/9 Comments/in 2024 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As you’ve no doubt heard, Congressman Barry Loudermilk released a report that, beneath what seems to be an appendix, refers Liz Cheney for investigation because she made sure that Cassidy Hutchinson had a lawyer who represented the former Mark Meadows aide’s interests when testifying before the Committee.

Loudermilk claims obtaining witness testimony for a proceeding amounts to obstructing it and also claims Cheney — and not those who provided testimony inconsistent with other sworn documents — suborned perjury.

Based on the evidence obtained by this Subcommittee, numerous federal laws were likely broken by Liz Cheney, the former Vice Chair of the January 6 Select Committee, and these violations should be investigated by the Federal Bureau of Investigation. Evidence uncovered by the Subcommittee revealed that former Congresswoman Liz Cheney tampered with at least one witness, Cassidy Hutchinson, by secretly communicating with Hutchinson without Hutchinson’s attorney’s knowledge. This secret communication with a witness is improper and likely violates 18 U.S.C. 1512. Such action is outside the due functioning of the legislative process and therefore not protected by the Speech and Debate clause.

The Federal Bureau of Investigation must also investigate Representative Cheney for violating 18 U.S.C. 1622, which prohibits any person from procuring another person to commit perjury. Based on the evidence obtained by this Subcommittee, Hutchinson committed perjury when she lied under oath to the Select Committee. Additionally, Hutchinson was interviewed by the FBI as part of its investigation into President Trump. This Subcommittee sought a copy of the FBI report 302, documenting this interview and Hutchinson’s statements, but the FBI has refused to produce this vital document. The FBI must immediately review the testimony given by Hutchinson in this interview to determine if she also lied in her FBI interview, and, if so, the role former Representative Cheney played in instigating Hutchinson to radically change her testimony.

Loudermilk’s tribute to Kash Patel’s leadership

Before Loudermilk delivers his welcome wagon for aspiring FBI Director Kash Patel, however, he provides solid evidence that Kash Patel is not fit to be FBI Director.

It turns out that the longest section of his report — 39 pages as compared to 36 for the Cassidy and Liz section — lays out how top DOD officials misrepresented their decisions regarding the National Guard leading up to and on January 6.

Just five pages of that pertain to Christopher Miller’s inaction on what Loudermilk treats as a legitimate request from Trump to have 10,000 National Guard in DC (Loudermilk doesn’t lay out the testimony from top Trump aides nixing that idea, based in part on a fear that Trump wanted an armed guard to accompany him to the Capitol).

But the rest has to do with delays created in deploying the Guard after the riot started. It has long been clear that DOD was blowing smoke about their claimed actions that day. On its face, this part of Loudermilk’s report is fair pushback to DOD’s past unpersuasive claims. He even sneaks some quasi-referrals — whether to aspiring FBI Director Kash Patel or aspiring Secretary of Defense Pete Hegseth, it’s not clear — for Miller and Ryan McCarthy into his report.

To date, no investigation or disciplinary action has taken place against Acting Secretary of
Defense Miller for his failure to follow directives from the sitting Commander-in-Chief on
January 3, 2021.

[snip]

To date, no investigation or disciplinary action has taken place against Secretary of the Army Ryan McCarthy for his failure to relay the Acting Secretary of Defense’s lawful deployment order at 3:04 PM on January 6, 2021.

[snip]

To date, no investigation or disciplinary action has taken place against Secretary of the Army Ryan McCarthy for deceiving congressional leadership with false statements regarding the delay in deployment of the D.C. National Guard to the U.S. Capitol on January 6, 2021.

The referrals are kind of interesting because McCarthy, at least, is on Kash’s dated and disorderly enemies list.

Mind you, if McCarthy was at fault for his January 6 response, it suggests there was something real to be at fault for. Maybe that’s why these referrals are snuck into the longest section of the report?

What’s most interesting, however, is Loudermilk’s picture of the DOD leadership that failed.

Someone — DOD’s then Acting Chief of Staff at the time — is missing.

Indeed, Kash’s name doesn’t show up anywhere in the 128-page report. Kash is a no-show even though, in the immediate wake of the insurrection, he had a great deal to say to Vanity Fair about his personal involvement in the two issues for which Loudermilk faults DOD.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.The implication: Either Trump was shell-shocked, effectively abdicating his role as commander in chief, or he was deliberately stiff-arming some of his top officials because he was, in effect, siding with the insurrectionists and their cause of denying Biden’s victory.

As for Mike Pence, Miller disputed reports that the vice president was calling the shots or was the one who sent in the Guard. The SECDEF stated that he did speak with Pence—then in a secure location on the Hill—and provided a situation report. Referring to the Electoral College certification that had been paused when the mob stormed the building, Miller recalled Pence telling him, “We got to get this thing going again,” to which the defense secretary replied, “Roger. We’re moving.” Patel, for his part, said that those assembled in Miller’s office also spoke with congressional leaders Nancy Pelosi, Chuck Schumer, and Mitch McConnell. “We were called upon to do our job, and we executed because we had the reps and sets built into our process to get the troops where they were requested, to put up a fence, to secure a perimeter, and to help clear the Capitol compound. I mean, that’s just what we do.”

Some of what Kash said to Vanity Fair somewhat resembles Kash’s testimony to the January 6 Committee.

Although look forward to discussing these events in detail, I would like to make three things clear at the outset — excuse me — at the outset:

One, the actions the DOD took before January 6, 2021, to prepare for the planned protest in Washington, D.C., on January 5th and 6th, 2021, were appropriate, supported by requirements, consistent with the DOD’s roles and responsibilities, and compliant with laws, regulations, and other applicable guidance; two, the DOD’s actions to respond to the United States Capitol Police request for assistance on January 6th, 2021, were appropriate, supported by requirements, consistent with the DOD’s roles and responsibilities, and compliant with the laws, regulations, and other applicable guidance; and, three, DOD officials did not delay or obstruct the DOD’s response to the United States Capitol Police request for assistance on January 6th, 2021.

These are not just my words but, in fact, the findings of the DOD’s independent inspector general under President Biden’s administration. The IG’s November 16, 2021, report has marked has been marked as exhibit 3, I think.

But when January 6 Committee staffers asked the now-aspiring FBI Director about the Vanity Fair article itself he got … squirmy. His testimony to J6C was inconsistent with both what he told Vanity Fair and what Loudermilk lays out in his report.

A Oh, so you remember stuff like that. So, going off just the memory, and we can go back to the article when you bring it up, there was a meeting with the President of the United States, Acting Secretary Miller, and some others — I can’t recall off the top of my head where we were discussing, as the article states, something related to Iran.

And, in that same meeting, I believe it was on or around January 4th, 3rd, 4th, or 5th, the -as I stated earlier, in order for the Department of Defense’s National Guard to 11 be activated in any way we needed Presidential authorization. And President Trump at that

[Discussion off the record.]

Q sure. Go ahead.

A Okay. And so this question appears to implicate core executive privilege concems. I’m prepared to answer it, but I want the record to reflect my serious concerns about congressional overreaching of this matter.

So what I remember is that we knew, in order to get the National Guard even mobilized, we needed the President to at least say yes first. So what — my recollection of that meeting is the President preemptively authorized 10 to 20 National Guardsmen and-women around the country sorry? 10- to 20,000.

[snip]

Q Do you remember if the President mentioned anything that he may need these 19 troops to protect the Trump people?

A don’t recall him ever saying that.

Whichever Kash story you believe, however, both stories put Kash in the center of everything. Both stories claim he had the ability to directly affect all of the failures Loudermilk lays out (which might also explain why DOD’s story about January 6 is so unpersuasive).

If Kash was right there at the center of the story of DOD’s failures leading up to and on January 6, as told by Barry Loudermilk, then Loudermilk would have to include him, the aspiring FBI Director, among the referrals for investigation.

Perhaps that’s why Loudermilk instead just disappears the aspiring FBI Director: to avoid referring him to the aspiring FBI Director for accountability for his failures on that day?

How Barry Loudermilk covers up his own coverup

Which brings us to Loudermilk’s own coverup.

Loudermilk has been fluffing Trump’s non-response for some time as in this report, when he shows no interest in the Commander in Chief’s inaction that day.

Rather than dwelling on Trump’s demonstrable inaction, including in accelerating the Guard deployment, Loudermilk claims there was a witness present that day who would have heard if (as Hutchinson testified) Trump had cheered the taunts of “Hang Mike Pence,” rather than (as Jack Smith described) Nick Luna testifying that Trump simply said, “So what” when told Pence was evacuated.

Loudermilk puts great stock in this witness being better situated than Hutchinson to hear what Trump was saying.

This individual was within earshot of President Trump the entire time the President was in the President’s Dining Room. Additionally, in its investigation, the Subcommittee spoke with numerous individuals who worked closely with Meadows in the White House, and they confirmed that Meadows would not react apathetically to calls for violence, nor repeat an incident like the one alleged by Hutchinson so carelessly in a public space.

Only, this appears to be the area where Loudermilk was dealing with incomplete information. As Kyle Cheney first pointed out, Loudermilk released a redacted copy of what appears to be this person’s transcript.

But Jack Smith released an unredacted fragment of that transcript.

The transcript suggests Trump was far more entranced with the mob than Loudermilk wants to admit.

Loudermilk excuses his own gaps in knowledge by accusing Jack Smith of … collusion.

Chairman Loudermilk and the Subcommittee have uncovered evidence of collusion between the Special Counsel Jack Smith—the prosecutor appointed by Attorney General Merick Garland to conduct two separate criminal investigations into President Trump207—and either the White House or the Select Committee. On October 18, 2024, Special Counsel Smith released some of the documents used in his filing against President Trump.208

Among the released documents was an unredacted version of the transcript of a Select Committee interview with a certain White House employee. 209 Given that the Select Committee did not archive, or otherwise destroyed this transcript, and that the White House refused to provide an unredacted version to the Subcommittee, the only remaining explanation is that Special Counsel Smith received the unredacted version from one of the two institutions which did not cooperate fully with the Subcommittee.

207 Press Release, U.S. DEP’T OF JUST., Appointment of a Special Counsel (Nov. 18, 2022).

208 April Ruben, More docs unsealed in Jack Smith’s Jan. 6 case against Trump, AXIOS (Oct. 18, 2024).

209 Kyle Cheney (@kyledcheney), X (Oct. 18, 2024, 11:45 AM).

We may find out soon enough how Jack Smith got an unredacted transcript that Loudermilk did not get. But he’s wrong that they’re the same transcript. They’re paginated differently (what is page 38 on Loudermilk’s copy is page 30 on Smith’s). Which ought to be a hint to Loudermilk’s crack team: the transcript is sourced differently, which may prove that January 6 committee didn’t destroy evidence he accuses them of destroying.

Plus, the point remains: Loudermilk’s own excuses for Trump’s inaction look different in light of more fulsome evidence, which shows Trump was entranced by the riot as soon as he returned to his office.

Loudermilk’s sketchy evidence

As to Loudermilk’s referral of Liz Cheney to an aspiring FBI Director whom Loudermilk would have to refer as well if not for his utter silence about the aspiring FBI Director’s centrality to what Loudermilk describes as insubordination and misconduct?

I hope, for Loudermilk’s sake, that it is intentionally half-hearted, an effort to do what he knows Trump is demanding, to simply give the aspiring FBI Director an excuse to predicate an investigation into Liz Cheney (if not himself).

Because key parts of his argument don’t say what he claims they do.

For example, a footnote in Loudermilk’s report appears to claim that texts between Cassidy Hutchinson and Alyssa Farrah apparently dated May 2 (by context, this would be 2022) are instead from June 6 (2021, the footnote says; my annotations, but Loudermilk appears to have mixed up two sets of texts he has).

Even assuming the footnote meant June 6, 2022, not 2021, the difference matters, because as Loudermilk notes, Hutchinson appeared a third time before the committee represented by Stefan Passantino on May 17, 2022, so her continued satisfaction with Passantino on May 2, 2022 is inconsistent with Loudermilk’s story and consistent with Cheney’s.

Loudermilk makes much of the fact that Passantino was not disciplined after a complaint in which Hutchinson refused to cooperate. Except the source he relies on for that claim, this NYT story, describes (in addition to the fact that Hutchinson refused to cooperate) that Passantino was ordered to do training about written conflict disclosure to his clients.

In a Feb. 2 letter, the office said that while Ms. Hutchinson had consented to having Mr. Passantino’s fees paid by the political action committee aligned with Mr. Trump, putting the arrangement in writing is mandatory under Rule l. 5(b) of the District of Columbia Rules of Professional Conduct. It required him to take legal ethics training classes during a probation period.

But, citing Ms. Hutchinson’s unwillingness to talk to investigators, the office said there was insufficient evidence on the larger matter.

“Ms. Hutchinson made some allegations about your conduct to the committee, but she refused to cooperate in our investigation,” it said. “Accordingly, except for the Rule l. 5(b) allegation, which you admit, we are not proceeding on her other allegations at this time. We are unable to prove those allegations by clear and convincing evidence, as we must.”

Elsewhere, Loudermilk claims that Hutchinson’s own House testimony supports his claim that Hutchinson selected Alston & Bird “at the recommendation of Representative Cheney” (he doesn’t provide a page number). But that section of Hutchinson’s testimony doesn’t support his contention about Cheney’s role in it.

Which brings us to the biggest problem with all this. Loudermilk’s conspiracy theory that Liz Cheney went out and got Hutchinson a lawyer who would support a propaganda line that Committee was seeking gets very close to claiming that Hutchinson’s new legal team, including former top DOJ official Jody Hunt, was himself engaged in unethical conduct.

I would bet a good deal of money that if Hunt were ever asked if he acted ethically when he represented Hutchinson’s later appearances before the committee, he would say he did.

And even if everything Loudermilk claimed were true, even if Cheney were acting as a lawyer and not a Committee member, she’d still be guilty of no more than unethical — not illegal — conduct.

Especially when by focusing on Cheney but ignoring aspiring FBI Director Kash Patel, Loudermilk gives up the game.

This report does more to cover up what Loudermilk himself suggests is potential misconduct from aspiring FBI Director than it exposes real crimes by Liz Cheney.

And he provides this evidence of either incompetence or (Loudermilk claims) misconduct in the black hole where Kash Patel should be just in time for Kash’s confirmation hearings before the Senate.

Trump Is Not on a “Retribution Tour;” He’s on an Authoritarian Spree

December 18, 2024/66 Comments/in 2024 Presidential Election, Press and Media /by emptywheel

A wave of media commentary about Trump’s lawsuit against Ann Selzer and the Des Moines Register for engaging in First Amendment protected speech has treated it as somehow more ominous than any of the other nuisance lawsuits Trump has filed over the decades.

I’m skeptical whether this marks a newfound escalation (or even whether ABC’s settlement with Trump had any effect at all on it); remember Trump’s lawsuit against the Pulitzer Prize for rewarding NYT and WaPo journalism that (as I laid out) got to the core of the Russian investigation rather than the stuff Trump distracted people with, which — like the ABC one — won the support of a Florida judge sympathetic to Trump’s bullshit misrepresentations, in this case about the Russian investigation?

This Selzer lawsuit follows a long thread of similar ones that are just as abusive, attempts, like so much else that Trump does, to create his own false reality.

What I do know, though, is that contrary to at least three columns (TPM, Puck, Status), Trump is not on a retribution tour.

retribution
noun
ret·ri·bu·tion ˌre-trə-ˈbyü-shən
Synonyms of retribution
1: recompense, reward
2: the dispensing or receiving of reward or punishment especially in the hereafter
3: something given or exacted in recompense
especially : punishment

Did you know?
With its prefix re-, meaning “back”, retribution means literally “payback”. And indeed we usually use it when talking about personal revenge, whether it’s retribution for an insult in a high-school corridor or retribution for a guerrilla attack on a government building. But retribution isn’t always so personal: God takes “divine retribution” on humans several times in the Old Testament, especially in the great Flood that wipes out almost the entire human race. And retribution for criminal acts, usually in the form of a prison sentence, is taken by the state, not the victims.

Synonyms
payback
reprisal
requital
retaliation
revenge
vengeance

If you believe Trump is on a retribution tour, you are accepting his claim that truthful reporting of (flawed) survey results, or truthful reporting of what sources say about Trump associates’ attempts to cover up their ties to Russia, or truthful labeling of lies as lies, amount to some kind of harm.

If you use the term “retribution” to describe Trump’s attacks on the press, you are accepting his frame that free speech that accurately describes his faults is somehow wrong, an injury to be avenged.

Worse still, if you adopt his frame — retribution — you are normalizing the false claims of grievance that animated Trump’s entire campaign, from the kickoff in Waco to the far right rally in Madison Square Garden — a campaign of grievance explicitly defending insurrection against democracy, as Jonathan Karl laid out over a year ago.

He declared, “2024 is the final battle.”

This wasn’t a campaign speech in any traditional sense. Trump echoed the themes of paranoia and foreboding that grew out of the Waco massacre. “As far as the eye can see, the abuses of power that we’re currently witnessing at all levels of government will go down as among the most shameful, corrupt, and depraved chapters in all of American history,” he said.

“They’re not coming after me,” he told the crowd. “They’re coming after you.”

The message seemed to resonate, but its brazenness was staggering. The folks cheering Trump had not taken boxes stuffed with classified documents out of the White House—and it’s safe to assume that none of them spent tens of thousands of dollars to cover up an affair with an adult‐film star.

Whatever you think about the investigations, Trump invited the scrutiny. Special Counsel Jack Smith was probing Trump’s role in the January 6 attack and his failure to turn over that classified material. Fulton County District Attorney Fani Willis was investigating his efforts to overturn the 2020 presidential-election results in Georgia. And Manhattan District Attorney Alvin Bragg was nearing an indictment on charges related to hush‐money payments Trump made weeks before the 2016 election to the porn star Stormy Daniels.

“The DOJ and FBI are destroying the lives of so many Great American Patriots, right before our very eyes,” Trump posted on Truth Social the day after four members of the Proud Boys militia were convicted of seditious conspiracy for their role in the storming of the Capitol. “GET SMART AMERICA, THEY ARE COMING AFTER YOU!!!”

[snip]

“The sinister forces trying to kill America have done everything they can to stop me, to silence you, and to turn this nation into a socialist dumping ground for criminals, junkies, Marxists, thugs, radicals, and dangerous refugees that no other country wants,” he said. The speech was ominous, but one rhetorical flourish stood out. “In 2016, I declared I am your voice. Today, I add: I am your warrior; I am your justice,” Trump said. “And for those who have been wronged and betrayed, I am your retribution.” He repeated the last phrase—“I am your retribution”—and promptly the crowd started chanting: “U.S.A.! U.S.A.! U.S.A.!”

When I spoke with Bannon a few days later, he wouldn’t stop touting Trump’s performance, referring to it as his “Come Retribution” speech. What I didn’t realize was that “Come Retribution,” according to some Civil War historians, served as the code words for the Confederate Secret Service’s plot to take hostage—and eventually assassinate—President Abraham Lincoln.

“The use of the key phrase ‘Come Retribution’ suggests that the Confederate government had made a bitter decision to repay some of the misery that had been inflicted on the South,” William A. Tidwell, James O. Hall, and David Winfred Gaddy wrote in the 1988 book Come Retribution: The Confederate Secret Service and the Assassination of Lincoln. “Bitterness may well have been directed toward persons held to be particularly responsible for that misery, and Abraham Lincoln certainly headed the list.”

Trump’s authoritarian project depends on convincing masses of people that accurate descriptions about him, or equal application of the law to him, or good faith if flawed efforts to measure the number of Iowans who prefer someone else to be president harm not just him, but them, his followers. Trump’s authoritarian project depends on convincing people that because he can’t withstand truthful descriptions, his followers must oppose the truth as a grievous harm, a crime.

Trump’s authoritarian project depends on packaging up his assault on truth as justice.

That’s what you buy into when you use the word “retribution” to describe what he’s doing.

No person who cherishes journalism, truth, democracy should be a party to that kind of obfuscation.

David Weiss’ Rush Job on Alexander Smirnov’s Sentencing

December 17, 2024/22 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

As I noted in an update to this post, Alexander Smirnov, the FBI informant who attempted to frame Joe Biden with bribery in 2020 as part of Bill Barr’s side channel for dirt on Hunter Biden, has pled guilty.

In his plea deal, Smirnov admitted,

The events Defendant first reported to the Handler in June 2020 were fabrications. In truth and fact. Defendant had contact with executives from Burisma in 2017, after the end of the Obama-Biden Administration and after the then-Ukrainian Prosecutor General had been fired in February 2016 — in other words, when Public Official 1 could not engage in any official act to influence U.S. policy and when the Prosecutor General was no longer in office. Defendant transformed his routine and unextraordinary business contacts with Burisma in 2017 and later into bribery allegations against Public Official 1, the presumptive nominee of one of the two major political parties for President, after expressing bias against Public Official 1 and his candidacy.

Yesterday, Judge Otis Wright accepted Smirnov’s plea.

I’ll have a more substantive post about how David Weiss, along with an absolutely supine media, appears to have buried the frame job to which he was a witness.

For now, I want to point to a notable feature of the plea: the timing of it. One of the terms of the deal was that Smirnov agree to be sentenced within 30 days of his plea colloquy, but not before January 8.

3. Defendant agrees to:

a. At the earliest opportunity requested by the SCO-W and provided by the Court, appear and plead guilty to:

i. Count Two of the indictment in United States v. Alexander Smirnov, 2:24-CR-00091-ODW, which charges defendant with causing the creation of a false and fictitious record in a federal investigation, in violation of 18 U.S.C. § 1519 (hereafter the “obstruction of justice indictment”).

ii. Counts One, Five and Eight, of the indictment in United States v Alexander Smirnov, 2:24-CR-00702-ODW, which charges the defendant with tax evasion for tax years 2020, 2021 and 2022, in violation of 26 U.S.C. § 7201 (hereafter the “tax evasion indictment”).

b. Request that the Court sentence the defendant within 30 days of entry of the entry of his guilty pleas, but not sooner than January 8,2025

In yesterday’s plea, Judge Wright set that schedule in motion.

The Court refers the defendant to the Probation Office for the preparation of an EXPEDITED presentence report and continues the matter to January 8, 2025 at 10:30 a.m., for sentencing. Position papers are due 2 weeks before the sentencing. If the papers are NOT submitted in time, they will not be considered.

All dates other than the sentencing hearing date are vacated as to this defendant.

Counsel are notified that Federal Rule of Criminal Procedure 32(b)(6)(B) requires the parties to notify the Probation Officer, and each other, of any objections to the Presentence Report within fourteen (14) days of receipt. Alternatively, the Court will permit counsel to file such objections no later than twenty-one (21) days before Sentencing. The Court construes “objections” to include departure arguments. Requests for continuances shall be filed or requested no later than twenty-one (21) days before Sentencing. Strict compliance with the above is mandatory because untimely filings impede the abilities of the Probation Office and of the Court to prepare for Sentencing. Failure to meet these deadlines is grounds for sanctions. [bold original]

It’s hard to convey how impossibly aggressive this timeline is. Three months to sentencing is more common than 23 days. After Hunter pled guilty on September, for example, his sentencing was set for December 16, more than three months in the future.

As the paragraph above notes, the only way the parties could even dispute anything in the presentence report (one was drafted for Smirnov’s detention fights, but a PSR would need to test the sentencing guidelines prosecutors adopted for the plea, which recommends 48 to 72 months in prison), would be to object tomorrow. And the two sides have just over a week to get their sentencing guidelines in.

This entire plea was an effort to get Smirnov to be sentenced on (but not before) January 8.

I’m not sure what leverage prosecutors used to get Smirnov to agree to this schedule; it’s not like the 4-year proposed sentence is that generous.

Perhaps Smirnov wants what prosecutors are likely pursuing: the opportunity for prosecutors to write a very damning closing Special Counsel report before Weiss gets fired, either by Joe Biden or Donald Trump. Perhaps this is a bid to harm Joe Biden while he remains President, for depriving prosecutors of the glee of sentencing his son.

We’ll know soon enough.

Update: There’s one more reason why this rush to, uh, judgment is so curious. As noted, the plea included a fairly stiff 48-72 month sentence.

18. Defendant and the SCO-W agree that the base offense level for Count Two in the obstruction indictment is 14, pursuant to U.S.S.G. § 2J1.2(a)(2) and the base offense level for Counts One, Five and Eight is 20, pursuant to U.S.S.G. § 2T4.1(H). Defendant and the SCO-W reserve the right to argue that additional specific offense characteristics, adjustments, and departures under the Sentencing Guidelines are appropriate.

19. Defendant and the SCO-W agree that, taking into account the factors listed in 18 U.S.C. § 3553(a)(l)-(7) and the relevant sentencing guideline factors, an appropriate disposition of this case is that the Court impose a sentence of: no less than 48 months and no greater than 72 months’ imprisonment; 1 year supervised release with conditions to be fixed by the Court; $400 special assessment; $675,502 restitution and no fine. The parties also agree that the defendant is entitled to credit in both Cr. Nos. 24- 91 and 24-702 for the period of his pretrial detention since the day of his arrest and that credits that the Bureau of Prisons may allow under 18 U.S.C. § 3585(b)) may be credited against this stipulated sentence, including credit under Sentencing Guideline § 5G1.3

But according to the sentencing table, the base assessment for Smirnov’s false statement of 14 would result in a range of 15-21 months (though those ranges are almost never actually applied for obstruction). And the 20 base assessment for Smirnov’s tax evasion (for three years, as compared to Hunter’s one) would be 33-41 months, assuming they were both applied with a no criminal history category.

Those add up to 48 to 62 months, not 48 to 72 months.

No defendant would agree to these terms before a tough judge (as Otis Wright is), unless he were certain that he’d soon be pardoned. There’s not even language stipulating how much credit Smirnov would get for pleading guilty (usually 2-3 points, which might bring the range down to 49 months).

This plea deal is designed to result in a wildly overinflated sentence (as it happens, for crimes equivalent to those that Hunter Biden was convicted of), all scheduled before Joe Biden leaves office.

The Terrifying Complexity of Tech Oligarchs’ Obeisance to Trump

December 16, 2024/40 Comments/in 2024 Presidential Election, Intelligence /by emptywheel

Perhaps I’m being a pollyanna. But from my perspective — living in Ireland, the lilypad for America’s tech companies, where regulators just ordered Meta to improve its responsiveness to complaints about terrorist content — I’m nowhere near as worried that ABC settled the lawsuit over whether Trump raped or just digitally raped E Jean Carroll as I am that one after another big tech oligarch, Jeff Bezos, Mark Zuckerberg, Sundar Pichai, and Tim Cook (Trump made a point in his presser today to note Sergey Brin has also come calling), has bent his knee to Trump, to say nothing of Elon Musk dumping $250 million to get Trump elected and then insinuating himself into the Trump family.

This post from Liz Dye and Andrew Torrez explains why, from a legal perspective, the ABC settlement is not quite as scandalous as some are taking it to be. And this Brian Stelter column explains why the timing of it suggests ABC may have had good reason to avoid discovery. All the times Fox has settled lawsuits before Sean Hannity had to sit for a deposition, which is when Fox always settles, were not deemed the end of the world, and this may not be either. It may, instead, simply be the shitty decision of a shitty mega corporation.

To be sure, Trump is going to follow Viktor Orbán’s formula and try to discipline the legacy media into acting as his captive media (as Anne Appelbaum discussed with Greg Sargent). But where have you been?!?! He made great strides in doing that already — building on his successful propaganda about the Russian investigation with distractions about dick pics in lieu of actual reporting on Trump’s alleged crime and corruption. The legacy media has been gleefully playing a useful prop in Trump’s domination reality TV show for years. I’d like them to stop, but cannot force them to figure out how they’re being used.

The obeisance from the tech oligarchs, however, terrifies me in a different way.

Consider how many different issues intersect in the business conflicts of these men:

Imports (especially for Apple) that might be subject to tariffs
Anti-trust
The Artificial Intelligence booming bustlet
Moderation & other content issues
EU privacy and moderation policy
Intelligence sharing and government contacting

Start with the ways that Trump has leverage over these oligarchs: Trump is threatening tariffs that could devastate Apple’s iPhone imports and Amazon’s general imports. Trump’s nominee to lead FCC, Brendan Carr, has threatened to pull Section 230 protection for platforms that moderate content. Biden’s DOJ has taken unprecedented anti-trust actions against Big Tech that Trump could easily reverse. Bezos, especially, is a big government contractor.

Trump has a whole set of carrots and sticks he can use with these oligarchs, even ignoring Trump’s threat to put Zuckerberg in prison for the rest of his life.

Meanwhile, all these men have spent the last few years enshittifying their companies with a commitment to Artificial Intelligence. Not only is Google’s search monopoly under threat in DOJ’s lawsuit, but Google has made its search function utterly useless with shitty AI.

AI was at once a stupid business bet, but also a wicked (and thus far, painfully successful) investment in busting intellectual property and with it white collar employment security, including that of journalists.

Trump’s sidekick Elon Musk has conned Trump into joining the AI cult, so on that issue Trump and the oligarchs see eye to eye, with the Russia’s useful idiot David Sacks appointed to push AI from within the White House.

Now consider how that mix of shared interests and powerful leverage plays out in Trump’s plan to extend fascist power.

We saw how it worked under Musk with Xitter: He bought the platform and then turned the public square into a forum that preferred not just right wing content (which was always true of social media platforms) but fascist content. All the while, Musk was conducting one of the largest ever disinformation campaigns targeting Kamala Harris on Meta. Trump has specifically threatened Google because pro-Trump content doesn’t drown out criticism, which is a danger when people increasingly get their content from YouTube rather than ABC.

That is, these same platforms can and have created gatekeepers between consumers and actual news products, gatekeepers that introduce their own antipolitical if not fascist bias. And Trump wants to magnify that effect.

That’s US focused content. But Musk tested his international reach last summer when he, personally, helped to gin up far right violence in the UK.

As today’s ruling against Meta shows, between privacy rules and content limits, the EU has better tools to combat the spread of fascism via US tech platforms, though they’re far from perfect. Importantly, Musk has treated British legal inquiries as a joke. And JD Vance has explicitly tied US national security policy, including NATO, to moderation policies.

The joint fascist/Russian project would like to break up the EU (or Orbanize it). Fascist parties are increasingly ascendant. And EU data sovereignty which limits hate and violent speech will be under increasing threat.

Especially here in Ireland. Ireland’s recent affluence is built on US tech investment. Indeed, the governing coalition bucked recent anti-incumbent trends in the recent general election thanks in part to taxes Apple was forced to pay, which the Irish government was reluctant to make it pay. Because Ireland is so beholden to those tech jobs, its regulation of US tech companies has only recently approached what the rest of the EU demanded. That gives the tech companies — and by extension, Trump — a special kind of leverage over Ireland. Ireland was already a weak point in European security, but the demands of tech companies could exacerbate that.

Meanwhile, it just so happens that the men bowing to Trump are the key participants in Section 702 spying, one of the most important competitive advantages the US empire has. And that, too, is a point of leverage with Europe. It has always been the case that an Empire’s intelligence projection is a benefit offered to those in its orbit. That’s why European leaders’ complaints about the Snowden disclosures were always muted: they relied on US intelligence to keep their countries safe. A number of recent disclosures about Russian influence operations and sabotage in Europe likely rely at least partly on US intelligence. But Trump has already been talking about cutting down intelligence sharing with Europe, something that would make it far harder to fend off Russian-backed fascist parties.

These oligarchs — every one of them, I’d bet — have long believed their companies supersede the sovereignty of mere nations. Before now, however, they lacked armies to enforce that claim. Trump has at least floated plans that might dramatically change how US tech companies become a kind of toxic platform projecting US power and propaganda.

Trump will continue to sue for defamation like he has always done. ABC caving doesn’t make that more or less likely. Trump will continue to seek other ways to bankrupt the legacy media.

But Trump’s relations with America’s tech giants have the potential to be an altogether new kind of threat, one far more ominous both within and outside the US.

And thus far, it appears the tech oligarchs are playing ball.

Update: Meanwhile, Will Lewis can’t convince any credible editor to work for him and Bezos.

The situation at the Washington Post is so dire that two candidates to run the paper — Cliff Levy of the New York Times and Meta’s Anne Kornblut, a former Post editor — both withdrew from consideration for the top newsroom job over the paper’s strategy, sources involved in the process say.

Why it matters: The Post is scrambling to find a new executive editor, the chair once held by Ben Bradlee, amid shrinking paid readership and revenue. Publisher and CEO Will Lewis, handpicked by owner Jeff Bezos to save the Post, hasn’t impressed the candidates with his vision for the future, the sources tell us.

One person involved in the search told us Lewis’ pitch was foggy and uninspiring.
Zoom in: Levy, who pulled out last week, and Kornblut, whose conversations ended in September, declined to comment. Other candidates include current interim executive editor Matt Murray. But it’s hard to imagine this monthslong process unfolding so publicly — only to end with the same guy in charge.

A few candidates were asked to write six-page memos — a hallmark of Amazon culture — about their journalistic vision for the paper, using AI and how to grow the Post’s audience.

Kash Patel Also Lied about Trump’s Personalization of US Intelligence

December 15, 2024/17 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Leak Investigations /by emptywheel

First Mother Jones and then NYT had stories this week laying out a bunch of false claims that Kash Patel made about his experience at DOJ.

The headline lie in both is that, in his Government Gangsters book and interviews since, Kash lied about how significant a role he played in the Benghazi investigation, as MoJo lays out here.

“I was leading the prosecution’s efforts at Main Justice in Washington, DC,” Patel writes.

Several FBI and Justice Department officials who worked the Benghazi case say this description is an exaggeration. Asked about Patel’s characterization, a former FBI special agent who was on that investigation for years exclaimed, “Oh my god, no. Not on that case. Not on Benghazi.”

[snip]

This former agent said that the counterterrorism section had a small role in the Benghazi probe. Primarily, the FBI and the US attorney’s office in Washington, DC, handled the case. “I don’t recall Patel having any influence on it,” he said. He recounted one meeting during the investigation that Patel attended in which Patel was not taken seriously by the main attorneys on the investigation. “The issue was whether or not we had the information needed to make a charge,” the former agent said. “He wasn’t a very experienced attorney and was dismissed by some of the attorneys at the table. The message was, we’re not paying attention to you.”

NYT adds a second, perhaps more important reason why Kash’s lies matter: Because he lied in an attempt to claim Democrats went soft on terrorism.

“Despite the fact that we had reams of evidence against dozens of terrorists in the Benghazi attack, Eric Holder’s Justice Department decided to only prosecute one of the attackers.”
— “Government Gangsters”

“I remember this meeting with then-A.G. Holder. And we had a deck of like 19 guys we wanted to prosecute. You know, JSOC had them rolled up and we wanted to get them all. They killed four Americans. You know, it’s a legit terrorist attack. And the basic general response from the F.B.I. and D.O.J. leadership was ‘it’s only politically convenient to get one guy.’”
— “The Shawn Ryan Show”

Mr. Patel’s statements suggest that the Justice Department under the Obama administration decided to initiate criminal proceedings against only one of the attackers, Mr. Khattala.

But as early as late 2013, the department had already filed sealed complaints against about a dozen militants, officials said at the time. Criminal complaints initiate prosecutions, but are often kept under seal if the charged person remains at large.

And prosecutors filed more secret complaints as the investigation identified additional suspects. A complaint filed against a Libyan man, Mustafa al-Imam, in May 2015, for example, became public only after his capture in 2017. (He was convicted in 2019 and sentenced to more than 19 years in prison.)

Other Benghazi suspects have since died.

Mr. Patel’s statement that the military had already “rolled up” as many as 19 attackers implied that they were already in American custody, raising the seemingly inexplicable question of why they did not get sent to trial.

In fact, to date, only Mr. Khatalla and Mr. al-Imam have been tried because the military has not captured any others — including on Mr. Patel’s watch as the Trump White House’s senior director for counterterrorism.

Capturing a specific person in a war-torn country where the military has scant ground presence is costly, risky and difficult. The operation to find and grab Mr. Khatalla required months of complex planning, including recruiting an informant to befriend and then lure Mr. Khattala to an oceanside villa, where an F.B.I. agent and American commandoes captured him and took him to an American warship waiting off the coast.

These fact checks will make for some interesting questions at Kash’s confirmation hearing. With some unspecified exceptions, these stories are primarily sourced to former officials:

Former agent
Former official in counterterrorism section
Andy McCabe
A former FBI agent who worked for years on the Uganda investigation
Robert D’Amico, a former F.B.I. agent
Public documents and interviews with several current and former law enforcement officials

That has the upside of allowing people to talk without fear. It means these people are no longer inside the bureaucracy, able to push back from within.

In any case, none of this will prevent Kash from being confirmed. Like Kash, John Ratcliffe fluffed his counterterrorism experience, in Ratcliffe’s case, to get elected. That led Trump to ditch his nomination a first time, but not in 2020 when he was confirmed on a largely partyline vote; the second vote was successful in significant part because then Acting Director of National Intelligence Ric Grenell, who was being babysat by Kash, was such a shitshow that Ratcliffe was a less-awful alternative.

But Kash has lied about more than his own inexperience. As NYT noted, he also likes to lie for partisan gain. That’s how he has convinced Republicans to support his nomination.

It’s a third kind of lie that hasn’t factored much in discussions of his tenure at FBI. Kash Patel has been absolutely central to Trump’s efforts to personalize intelligence obtained by US officials. And there is abundant reason to believe he lied about that, at least publicly, when he claimed, in May 2022, that Trump had declassified all the documents found at Mar-a-Lago. There’s a bunch about Kash’s role in the classified documents investigation — for example, why Kash and John Solomon suddenly got status as Trump’s representatives to the archives when prosecutors asked for surveillance video, or what Kash told prosecutors in November 2022 when he sat for immunized testimony — that is not yet public.

But it may become public, possibly as early as this week and presumably well before his confirmation hearing. Indeed, if (for example) one of the things the FBI found during the August 8, 2022 search of Mar-a-Lago but did not charge was some version of the Crossfire Hurricane binder, that may show up in Jack Smith’s closing report.

Another thing that might show up in Jack Smith’s report is what someone whose potty mouth resembles that of Eric Herschmann (person 16 here) had to say, in an interview days before Kash testified, about the claims that Trump “declassified everything” made by some “unhinged” person who exactly matches Kash (person 24).

As MoJo and NYT lay out, Kash Patel has lied to inflate his own resumé. He has lied to attack Democrats. According to Olivia Troye (whom Kash did not sue after threatening to do so).

But he was also a key player in Trump’s effort to take home classified documents and put them to his own personal use.

That, too, is unlikely to give Republican Senators pause before putting him in charge of FBI’s signals collection (often with NSA involvement) and informant programs. But it is likely to be far more important than fluffing his resumé going forward.

To Pay Off His Election Debts, Trump Seems Prepared to Destroy the United States

December 13, 2024/77 Comments/in 2024 Presidential Election, emptywheel /by emptywheel

Kimberly Strassel is struggling with cognitive dissonance. She’s trying to convince Republicans to reject the nomination of RJK Jr, whom she believes Trump named to head Health and Human Services only as electoral payback.

Welcome to the Robert F. Kennedy Jr. nomination, one of the more counterproductive Washington charades in recent history. Donald Trump has, in payback for late-stage election support, nominated a man for the vital cabinet position (health and human services) whom he once labeled a “Democrat Plant” and a bigger threat to the country than Joe Biden. Now meet the Republican senators, activists and influencers who are so clueless—and so blindly eager to salute the leader—that they can’t see the opportunity to save Mr. Trump from a deal he would never have made in other circumstances.

[snip]

It seems not to have occurred to Senate Republicans—who ought to have learned a little bit about Mr. Trump by now—that he needs a rescue here. No insider believes this is a heartfelt pick. Even political naïfs understand what happened: This agreement was entirely transactional. Mr. Trump saw an opportunity to gain RFK’s endorsement. The price was a promise of a big post. The president-elect is holding true to that deal as a businessman, so he won’t dare whisper misgivings for fear of leaks.

Instead Senate Republicans are playing monkey-see-monkey-do to an extent that even Mr. Trump must be exasperated. Nearly every GOP senator looks at Mr. Kennedy with wincing concern—knowing the havoc the anticapitalist big-government regulator can and will wreak on a Trump agenda. Yet no one steps up to save the president. If Joe Biden chose Hulk Hogan to be Treasury secretary, does anyone think Democrats would have let him step into that trap? But so desperate right now are Republicans to nod along that they are abdicating the real job of advice and consent—and protection.

Murdoch’s top columnist believes Trump needs to be saved from himself.

It comes with no small discomfort to admit that my approach to Trump’s nominations is not much different than [gulp] Strassel’s. I think Democrats, rather than fostering polarization by attacking Trump’s nominees as the partisan hacks they are, should instead frame the question in terms of the damage they’ll do to the US, the damage Republican Senators will own if they confirm them.

How hard can it be, after all, to convince Republicans that they don’t want to be responsible for letting Bobby Kennedy get rid of childhood vaccinations, revoking approval for the polio vaccine entirely, with the resultant death and destruction that’ll directly cause in their own states (as it did already in Samoa)?

How hard can it be, after all, to convince Republicans that the same billionaires who bankrupted Silicon Valley Bank then promptly begged for and got bailed out, shouldn’t be recommending the elimination of the FDIC?

That is, I think Democrats would be best served by laying out that if the Republicans approve these charlatans, they cannot claim they were not warned. They own the destruction Trump is embracing. If Trump gets his way on all these picks, it will be more destructive to the United States than dropping a nuke on NYC. And Republican Senators have a choice to sanction that … or try to prevent it.

All that said, in her valiant struggle to make sense of why the man she has blindly defended for years might take steps that will foreseeably do grave damage to harm the US, Strassel may simplify things somewhat when she imagines this is just about electoral payback.

For starters, much of the criticism Trump launched against RFK during the campaign was kayfabe, an attempt to appear to be on opposite sides as him, in a ploy to harm the Democratic ticket. That “charade,” as Strassel calls this, was about stealing Democratic votes, not feigned approval for RFK now.

Plus, Donald Trump is famous for reneging on his debts, whether personal or financial, and he would happily do so with RFK if he saw an advantage in it. Hell he has already reneged on the offer to Bill McGinley to be White House Counsel and given the job instead to David Warrington. While Elon Musk likely has a great deal of leverage over Trump for the foreseeable future, it’s hard to see how RFK could enforce any deal they made, if indeed they had one.

On the contrary, at least according to Trump whisperer Marc Caputo (citing Roger Stone, who has long been a professional Kennedy conspirator), Trump has affirmative reasons he wants RFK and … Tulsi Gabbard.

But the most critical fights for the president-elect, at least in regard to his immediate political legacy, center around Tulsi Gabbard and Robert Kennedy Jr., former Democrats tapped to head the nation’s sprawling intelligence and health bureaucracies, respectively.

Gabbard’s and Kennedy’s nominations, like Hegseth’s and Patel’s, have met resistance in pockets of the Senate. But Trump allies view the stakes differently. Confirming Gabbard and Kennedy is seen as an opportunity for the president-elect to cement his legacy of broadening the Republican coalition to include disaffected Democrats and independents. They note that the two are considered Blue MAGA rock stars among the Trump faithful. They’re both loved by the new influential podcasters whom Trump courted this election and give Trump the chance to burnish his anti-establishment bona fides.

“The appointments of RFK and Tulsi Gabbard represent a realignment in American politics that you saw in the election,” said Roger Stone, a longtime Trump friend and adviser. “He understands the historical significance of that realignment.”

For that reason, there is an expectation in Trump world that the president-elect will expend more of his political capital on Gabbard and Kennedy than on any of the other nominees. And that he could go apoplectic if their prospects begin to dim.

“Frankly, Pete [Hegseth] might not make it,” said one Trump adviser. “We’ll see. I’m not sure if the boss is willing to fight for that because there are people in our own camp who aren’t sure it’s worth it. But Kash [Patel] should get confirmed. And if they try to touch Tulsi and Kennedy, then it’s war.”

Added a second adviser: “If Tulsi or Bobby face real trouble, that’s when Trump will really start to fight. They represent the challenging of the status quo of the bureaucracy. That’s what MAGA is about.”

Now, Caputo is incredibly well-sourced in the vicinity of people like Stone, but he can be credulous.

And I’m not sure I believe that his sources believe what Bobby and Tulsi give you is some magical realignment among actual Democrats, who long ago dissociated from these nuts.

But I don’t doubt that the rat-fucker wing of Trump’s advisory team believes that Bobby and Tulsi do accomplish something. The question is whether some really smart politicos believe it’ll be a good thing to kill children and give dictators America’s secrets and let the richest men in the world destroy America’s banking system and the dollar exchange — whether they believe this will win lasting approval from America’s great disaffected masses. It might well! It certainly will expand the pool of disaffected Americans, and with it, increase the market for a strong man to respond to it all.

Or whether there’s some reason Trump is tempting Republican Senators to defy his plans to do great damage to the United States. Perhaps he intends to dare them to start defying him in bulk.

Or perhaps the rat-fucker wing of Trump’s entourage simply has an unknown reason they want to destroy America. Maybe Trump has other election debts — debts he’d get in more trouble for ignoring — that make him amenable to dropping policy bomb after policy bomb on America’s children.

But that’s sort of the point. You’ve got Kimberly Strassel up in arms because Trump is going to the mat for a conspiracist with a Democratic name who’ll get children killed. But it’s more likely to do with the policy bombs that RFK will help Trump drop than the specific conversations that led Bobby Jr to drop out of the race.

Chuck Grassley Says the FBI Must Combat Sexual Misconduct But the Senate Can Whitewash It

December 13, 2024/11 Comments/in 2024 Presidential Election, Hunter Biden, SCOTUS /by emptywheel

In a piece billed as “analysis” describing why Kash Patel likely faces little Republican opposition, the NYT’s Catie Edmondson chose to quote one after another Republican making false claims about bias from the Bureau:

Thom Tillis falsely claiming Patel’s nomination fulfilled Trump’s promise to “enforce our laws equally and fairly”
Chuck Grassley lying that the “unprecedented raid of President Trump’s home in Florida” was “to serve a warrant for records” and not conduct a search necessitated by Trump’s earlier obstruction
Joni Ernst imagining that Kash’s nomination would “create much-needed transparency at the F.B.I”
John Cornyn asserting that “no one should have to go through what President Trump went through by a partisan Department of Justice and F.B.I.,” which he falsely portrayed as a retribution tour launched by Jim Comey
Markwayne Mullin imagining that Kash might “actually get them focused on mission, rather than politics”

What the NYT describes but does not factually label is that most of the Republican party either parrots or truly believes Donald Trump’s manufactured claims of victimhood. But unless you describe that those claims that poor Donald Trump has been targeted are false, then you simply participate in the propaganda, blindly performing the same ritual of obeisance the Republican Senators are.

NYT quotes, but does not link, the letter in which Grassley issued his rant. Fact checking the letter (sent the day before Chris Wray announced he would resign, as Grassley demanded) might have provided a way to demonstrate the pile of false claims on which this impression of the FBI was built.

Oh sure, this particular journalist might not have had time to point out that on December 10, Alexander Smirnov answered any questions about the bribery claim he made up against Joe Biden by signing a plea deal (which the NYT wrote up yesterday, but buried), which Grassley complained about this way:

Consistent with that FBI failure, yet another glaring example of FBI’s broken promises under your leadership is its inexcusable failure to investigate bribery allegations against former Vice President Joe Biden, while strictly scrutinizing former President Trump. You’ve repeatedly claimed you would ensure the FBI does justice, “free of fear, favor, or partisan influence.”25 The FBI under your watch, however, had possession of incriminating information against President Biden for three years until I exposed the existence of the record outlining those allegations, but did nothing to investigate it.26 This record, known as an FD-1023, documented allegations of bribery between and among then-Vice President Biden, Hunter Biden, and Ukrainian officials.27 The FBI confidential human source (CHS) behind this FD-1023 was on the FBI’s payroll during the Obama administration, paid hundreds of thousands of dollars, was given permission to violate the law, and the information he provided was used in prosecutions. The FBI called this CHS “highly credible,” and Deputy Director Abbate publicly testified in response to the FBI’s refusal to remove obstructive redactions from that document that “[w]e often redact documents to protect sources and methods…the document was redacted to protect the source as everyone knows, and this is a question of life and death, potentially.” 28 Then after the FD-1023 was made public – which didn’t include the source’s name – DOJ not only publicly named him, but indicted him, calling into question the truthfulness of Deputy Director Abbate’s testimony and his refusal to be transparent.29 Still, to-date, the DOJ and FBI have neither answered whether they investigated the substance of the FD-1023, nor have they provided an explanation for any effort undertaken to obtain the financial records and other pieces of evidence referenced within the document. This sounds a lot like Director Comey’s leadership of the FBI, which was nothing short of shameful.

As I noted on the Senate floor on February 27, 2024, if a highly regarded source had alleged President Trump accepted a bribe, the FBI would pursue this information without keeping it stored away in one of its dusty closets for three years.30

Even before Smirnov’s plea agreement, though, there was plenty in the indictment (like reference to all the travel records that disprove Smirnov’s claims) that not just debunk Grassley’s claims, but make clear that the scandal here was that Scott Brady falsely insinuated to Congress that Smirnov’s travel records corroborated his claims, when they did the opposite.

There’s a far, far bigger problem though: Grassley’s claims about how FBI would respond to a claim of bribery if one implicated Trump are ridiculous.

When FBI (in reality, the decisions here were repeatedly made by DOJ, not FBI, which returning SJC Chair Grassley should be expected to know) got credible claims Trump had been paid by Egyptian spooks, first Robert Mueller (probably Rod Rosenstein), then Bill Barr prevented investigators from obtaining the financial records to pursue the case, a version of which story NYT published in August.

There’s the tip that — the NYT described — the Italians gave Barr and John Durham in 2019 about “suspicious financial dealings related to Mr. Trump,” a detail Durham chose to exclude from his final report.

There’s the $2 billion investment that Saudis made with Jared Kushner after Trump’s son-in-law finished his nepotistic service in the White House; as the NYT laid out, even the Saudis had doubts that Kushner had the expertise to invest that money. A NYT follow-up showed that Kushner’s firm has pocketed $112 million in fees without showing any profit from investments. Democrats have called for a Special Counsel to investigate that, but the Special Counsel-happy Merrick Garland has not done so.

And since the election, a Chinese national whom the SEC has accused of fraud, Justin Sun, effectively just sent Donald Trump $18 million (here’s a less direct NYT story on the how cryptocurrency creates real opportunity for corruption). Where’s your call for fairness, Chuck?

But there were alternative ways to debunk Grassley’s lies other than pointing to the six NYT stories that disproved his claims that FBI ignored a bribery allegation about Biden but chased them with Trump. Consider his most justified complaint, the one with which he begins his rant: The FBI has not explained whether it has pursued allegations of sexual misconduct within its own ranks fairly.

One of the most egregious examples is the FBI’s failure to provide basic information I requested more than two years ago related to the FBI’s ongoing mishandling of sexual harassment claims made by the FBI’s female employees. This request was not pulled out of a hat. It was based on credible whistleblower disclosures alleging hundreds of FBI employees had retired or resigned to avoid accountability for sexual misconduct. 5 Whistleblowers also alleged the FBI had disciplined senior officials less severely than their subordinates for this misconduct.6 In November 2022, I released internal FBI documents corroborating these disclosures.7 I and my staff ever since have asked repeatedly for information sufficient to determine how FBI handled these serious claims and how widespread the problem really is. The FBI, for its part, told the media it would provide the information to me.8 You personally told me at a December 5, 2023, Judiciary Committee hearing, when I confronted you with the FBI’s blatant inaction, that you would check with your team and then follow up with me.9 Your Deputy Director, Paul Abbate, also publicly stated the FBI is serious about removing officials for sexual misconduct. 10 After a year since you made that pledge, over three years since Deputy Director Abbate’s public comments, and after many more requests to FBI to provide this information, neither of you have followed up or followed through. This inexcusable delay and obstruction by you and Deputy Director Abbate has prevented Congress and the Judiciary Committee from addressing the shocking sexual misconduct at the FBI. This is a promise made and broken, on an issue of utmost importance.

Chuck Grassley says FBI’s failure to deal with credible claims of sexual misconduct is “an issue of utmost importance.”

Huh.

Grassley has not yet weighed in on the nominations of Pete Hegseth, Linda McMahon, or Kimberly Guilfoyle — all of whom have been implicated in sexual harassment or assault, but his comments about RFK Jr thus far have focused on, “educating him about agriculture,” rather than the assault of a nanny RFK admitted to. Other Senators, though, have suggested that Hegseth’s accusers should not enjoy the same protections that Grassley has fiercely defended for FBI whistleblowers, and have brushed off how Hegseth’s accuser could testify publicly given the nondisclosure agreement he paid her to sign.

More curiously, when he was asked about the sexual misconduct allegations against Matt Gaetz, Grassley falsely claimed his committee, “did a very thorough job following up on every accusation made against (Supreme Court) Justice Kavanaugh and nothing ever materialized.” Grassley said that after Sheldon Whitehouse issued a report showing that the FBI had forwarded all tips to the White House, rather than chasing them down.

On instructions from the White House, the FBI did not investigate thousands of tips that came in through the FBI’s tip line. Instead, all tips related to Kavanaugh were forwarded to the White House without investigation. If anything, the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information.

Whitehouse’s report describing the whitewash FBI did quotes now-debunked claims Grassley made about the thoroughness of the investigation several times.

“These uncorroborated accusations have been unequivocally and repeatedly rejected by Judge Kavanaugh, and neither the Judiciary Committee nor the FBI could locate any third parties who can attest to any of the allegations.”

[snip]

Then-Chairman Grassley said that the FBI “decided” which individuals to contact,98 that the FBI’s investigation was being conducted “in accordance with the agency’s standard operating procedures,” that “the career public servants and professionals at the FBI know what they’re doing and how best to conduct a background investigation,” and that the FBI’s investigation “should be carried out independent of political or partisan considerations.”

If you want to talk about FBI’s inadequate response to sexual misconduct allegations, then surely its whitewash of allegations against Brett Kavanaugh should be included? Want to complain about the FBI? Complain about how they deprived you, Chuck Grassley, of treating misconduct claims against Brett Kavanaugh as “an issue of utmost importance.”

But doing so would expose Grassley’s crass double standard, refusing to exercise the same due diligence with sexual misconduct allegations that, he complains, the FBI has not done in his own job, exercising advice and consent with Donald Trump’s nominees.

The Lessons of Zero Accountability for a Kash Patel Bureau

December 12, 2024/11 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

This is not your Chris Wray resignation post.

That’ll come later.

This post is a lessons learned about how Republicans — not just at FBI — exploited efforts to share fabricated evidence about Hunter Biden with Wray’s FBI.

In this post, I laid out the five different examples of fabricated evidence FBI or DOJ dealt with in the Hunter Biden case, along with four more instances where we can’t assess the rat-fuckery.

After sharing a debunked Fox News meme, Alexander Smirnov makes false claims of bribery
Derek Hines narratively plants a crack pipe in Wilmington
The gun shop also lied on the gun form
Tony Bobulinski[‘s FBI report] claims he saw a diamond pass hands
Gal Luft claims Joe Biden met directly with CEFC Chairman Ye in 2016

FBI enthusiastically welcomes “The Economist’s” claims
The Scott Brady side channel launders dirt Rudy Giuliani obtained from Russian agents
FBI makes Peter Schweizer their special Hunter Biden informant
Judge Maryellen Noreika admits a laptop that has never been indexed

I argued that several examples of that fabricated evidence directly harmed Hunter Biden’s due process. The pressure to chase Alexander Smirnov’s alleged attempt to frame Joe Biden with bribery seems to have played a significant role in the collapse of Hunter’s plea deal and the ratcheting up of charges afterwards. At least as early as Hunter’s bid to defeat a vindictive prosecution claim, AUSA Derek Hines misrepresented Hunter’s own memoir to claim the book helped prove Hunter was doing drugs when he owned a gun, a misrepresentation Hines sustained before the jury that convicted Hunter. While evidence that others lied on gun purchase forms, as the gun shop owner had done by doctoring the very gun form on which Hunter was convicted of lying, is routinely excluded at trials, doing so in this case prevented Hunter from arguing his lie was not material.

Fabricated evidence was allowed to infringe on the due process rights of the son of the President. And the dick pic sniffing media didn’t make a squeak.

But in other of the attempts to politicize Hunter’s case that I laid out, things worked the way it is supposed to. Other examples of fabricated or potentially fabricated evidence were excluded by diligent prosecutors or FBI agents. AUSA Lesley Wolf attempted to keep dirt funneled from Russian spies, Smirnov, and Rudy Giuliani through the Brady side channel from infecting the case. At the request of case agents, FBI supervisory agent Tim Thibault shut down Peter Schweizer as an informant … again, out of an interest to preserve the integrity of the case. Someone in that same vicinity deemed Tony Bobulinski’s claims to be suspect, so investigators didn’t rely on his testimony, but continued to investigate Hunter’s payments from CEFC via other means.

But this is the important lesson, especially going forward: those efforts to maintain the integrity of the investigation were punished, severely. House Republicans (assisted by the disgruntled IRS Agents, in the case of Wolf), treated Wolf and Thibault like villains, eliciting threats against them and leading to their retirement. Because they attempted to prevent the case against Hunter from being deliberately politicized, Trump’s allies in the House made them pariahs and chased them out of government.

This is what already happened to people who tried to uphold rule of law. This is what will happen more going forward. Congress will work in tandem with a politicized DOJ to ensure that the good guys get targeted and chased out.

Often, House Republicans efforts to demonize people who had upheld the integrity of evidence relied on “whistleblowers” who (with just a few exceptions) had themselves been caught politicizing law enforcement themselves, and to retaliate, ran to Jim Jordan to complain.

Aspiring FBI Director Kash Patel funded some of these people telling stories to undermine FBI’s efforts to uphold its integrity.

That’s not the only role the House GOP played in this process.

Congressman like Jim Jordan and James Comer are protected by Speech and Debate even if they lie. And they did lie — or perhaps were too stupid to realize the claims they made were baseless. They lied on right wing propaganda outlets. They lied in reports and hearings.

Whereas the legal prosecution against Hunter generally relied on actual facts (even if Derek Hines moved them around to where he wanted them to be), the House did not. They platformed Bobulinski (and then thought better of it), they championed Luft and Smirnov (and then thought better of it), they championed the Brady side channel. They made Matt Taibbi’s mistaken misrepresentations about the FBI a repeat feature. They turned loan repayments and daily check-in calls into international spy scandals. They guaranteed that the claims discarded by the Bureau because they didn’t meet evidentiary standards would be magnified in the public sphere.

In the Republican House, you don’t need facts to make a case in the court of public opinion. And such false claims played a key role in persecuting even the people who had done nothing more than exercise their First Amendment rights, people like disinformation experts and former spooks honestly expressing concerns about Russian influence operations.

As Kash Patel likely assumes control over an agency that is supposed to be bound by facts — but that even under Wray had begun to be corrupted by Trump’s politicization — remember how Congress has served as a annex to the presumptively evidence-bound investigations as to matters of law, an annex spun free of such bounds. Even before Patel dismantles those bounds, there’s always the alternative of having the loudmouths in Congress do Trump’s dirty work.

Importantly, the loudmouths can do so only as long as a supine press plays along.

But play along they have.

With Hunter Biden, two things facilitated that. For the political and DOJ beat journalists, the existence of the laptop seemingly melted their brain, making them incapable of seeing details through the dick pics.

But for Hill journalists, process was the hook. Jordan and Comer guaranteed breathless coverage by delivering bullshit disguised as events that Hill journalists treated as normal — a stern letter, a subpoena (issued, at first, without the authority to enforce it, which went widely unnoticed and unreported), a formal impeachment inquiry. Never mind that the thing underlying those events was a naked political stunt. Few ever got around to stepping back and observing that the House GOP blew almost their entire two year majority on making enemies. Few ever reported that the House GOP had spent millions of taxpayer dollars, not in paying the bills or funding highways, but in creating enemies. And by treating that process as normal legislative process, journalists normalized it all.

As we move forward to an even more politicized DOJ, keep in mind that with this kind of symbiosis already in place, with the House GOP already prepared to blow up stuff that gets thrown out by the FBI, much of Patel’s work — chasing out honest people trying to protect the integrity of investigations, manufacturing more bullshit claims — will be done for him.

There is one thing that Kash can and undoubtedly will do: recruit more allies — people like Schweizer, or the Proud Boys Bill Barr deputized to try to turn Antifa into a thing — to inform against Republican adversaries. With Pam Bondi’s help, Kash can trade immunity for fabricated claims against his targets, just as Rudy Giuliani was selling in search of dirt on Hunter Biden.

Otherwise, though, Kash can instead focus on ensuring that none of Trump’s people face consequences for their actions.

In Advance of the KashTastrophe, DOJ IG Raises the Stakes on Investigations of Congress

December 11, 2024/12 Comments/in 2024 Presidential Election, Leak Investigations /by emptywheel

Yesterday, DOJ’s Inspector General released its long-awaited report on some subpoenas DOJ used in 2017, 2018, and 2020 to target, first, people in Congress, and then in the later round, journalists, including WaPo’s Ellen Nakashima, Greg Miller, Adam Entous, NYT’s Matt Apuzzo, Adam Goldman, Eric Lichtblau, Michael Schmidt, and CNN’s Barbara Starr. The purported goal was to solve some leak investigations; with the exception of convicting James Wolfe for false statements to the FBI (the investigation into him arose out of the first congressional subpoenas discussed here), none were solved via these subpoenas.

Little of the narrative on the subpoenas targeting journalists is entirely new. It was covered in these stories in real time:

May 7, 2021: Trump Justice Department secretly obtained Post reporters’ phone records

May 7, 2021: Justice Dept. Seized Washington Post’s Phone Records

May 20, 2021: Trump Justice Dept. Seized CNN Reporter’s Email and Phone Records

June 2, 2021: Trump Administration Secretly Seized Phone Records of Times Reporters

June 4, 2021: U.S. Waged Secret Legal Battle to Obtain Emails of 4 Times Reporters

June 10, 2021: Hunting Leaks, Trump Officials Focused on Democrats in Congress

June 11, 2021: Justice Dept. Watchdog to Investigate Seizure of Democrats’ Data

June 11, 2021: In Leak Investigation, Tech Giants Are Caught Between Courts and Customers

The findings on the journalist side of the report were that Bill Barr properly approved the subpoenas, but didn’t do a mandated review from a committee on media first (though Kerri Kupec bought off on the subpoenas), and didn’t fully comply with a DNI statement saying the spooks still wanted to solve the leak for a few. The biggest controversy was how DOJ approved Non-Disclosure Orders to prevent journalists from learning of the investigation, but with the exception of the leak to Barbara Starr, those too followed the approach at the time, which was to issue knee-jerk NDOs.

One of the few new details is that Barr brought an AUSA from some field office into Main DOJ for a six month temporary assignment to renew focus on the leak, but the IG concluded that person wasn’t brought in for partisan purposes.

The findings on the Congressional side of the report are somewhat more interesting, not least because the policy on third party subpoenas to phone companies, Google, and Apple implicating people (including staffers and Members, throughout this discussion) in Congress were nowhere as formalized as the media guidelines were.

Particularly given that House Intelligence Chair, Republican Mike Turner, issued the loudest response to this report, it could have interesting repercussions in a second Trump term.

The report actually describes that the congressional subpoenas were an interim step between investigating the Executive Branch people who had access to the classified information (in 2017) and the journalists (in 2020, for the WaPo and NYT). The reason it appeared that there were more Democrats targeted — including Adam Schiff and Eric Swalwell — was because a Democratic HPSCI staffer had suggested they had leaked (and also implicated a senior staffers whose actual emails were collected).

The IG Report found that, aside from Schiff and Swalwell and a top Dem staffer, there was a fairly even balance of Democrats and Republicans targeted (including Kash Patel, though it doesn’t name him); it does say that FBI was preparing to serve legal process on a Republican Member of Congress until the James Wolfe investigation proceeded to the point where they had one and only one perpetrator for the Carter Page FISA leak, so that person was not subpoenaed.

It’s the recommendations where this report, issued after Patel already sued and lost over being subpoenaed, and in advance of Patel’s likely confirmation as FBI Director whose activities will be overseen by whatever trash heap Trump makes of DOJ IG by then, that are of interest.

The Report reasons that since Congress is a co-equal branch of government protected by Speech and Debate privileges enshrined in the Constitution, it should have a similar kind of protocol that journalists benefit from (a protocol which has since been strengthened, but which Patel and Pam Bondi are sure to torch).

It made three recommendations to that effect.

Currently, DOJ’s policy requires that a US Attorney and Public Integrity approve a third party subpoena implicating someone from Congress, with an Urgent notice (the kind of warning they have to give before indicting someone prominent) provided to top DOJ leadership. The current practice would allow a US Attorney’s Office to rely primarily on the advice of career officials before investigating someone (whether a staffer or a Member) in Congress.

DOJ IG recommends instead more formal notice from the AG.

First, in order for senior leadership to be able to consider and decide matters potentially raising constitutional separation of powers issues, we recommend that the Department evaluate when advance notification to a senior Department official, such as the Deputy Attorney General or Attorney General, should be required before compulsory process is issued, and any corresponding NDOs are sought, for records of a Member of Congress or congressional staffer and establish, as necessary, implementing policies and guidance.

In a Pam Bondi DOJ, this would virtually guarantee that no Republicans would be investigated, because she would have advance veto.

DOJ IG also recommended that when DOJ requests Non-Disclosure Orders implicating people from Congress, they tell the judge approving the NDO that it is someone from Congress.

Second, we recommend that the Department consider the circumstances in which NDO applications and renewals should identify for the reviewing judge that the records covered by a proposed NDO are records of Members of Congress or congressional staffers.

This is uncontroversial and would stop the kind of knee-jerk NDO requests that hid these subpoenas for five years.

The last entirely justified recommendation that nevertheless could have the most intriguing implications is that DOJ adopt the same kind of exhaustion requirement that the media policy has. That is, you can only start getting legal process on people in Congress after you’ve exhausted other investigative approaches.

Third, we recommend that the Department consider whether there are circumstances in which an exhaustion requirement should be a prerequisite for issuing compulsory process to obtain records of Members of Congress and congressional staffers.

That is, in principle, what happened here: DOJ first checked Executive branch personnel and only then started investigating in Congress after stories started closely following Congressional briefings on the topics. But taken to its logical outcome, it would get interesting.

On the one hand, it would make it much harder to get even subpoenas on people in Congress than it already is (the one Democratic staffer and Wolfe were the only Congressional staffers whose content was collected).

This would make it easier for whistleblowers to leak to members of Congress and for them to leak to the press.

Such leaks might be one of the last failsafes going forward.

Except by rooting the notion of exhaustion in the constitutional protections afforded Congress, it might actually flip the current structure on its head. The reason why you would investigate a member of Congress before a journalist is because under the current approach, the congressional staffer with clearance is the only one who would be prosecuted (the of Wolfe example notwithstanding, that is exceedingly rare in any case; in the Jeffrey Sterling case the Senate protected a key Republican staffer who was suspected).

But if you decide Congress should have more protection, then an FBI Director who has already threatened to go after journalists might first choose to exhaust investigative remedies against journalists before turning to Congress.

That is, there’s a chance these policy recommendations would be used as an excuse to prosecute journalists but not their sources.

None of this may matter anyway, because there’s a high likelihood that Kash and Bondi will simply torch all the guidelines discussed as it is. They’re not statutorily mandated. And if Trump does start firing Inspectors General as he has promised to do, then it’s not clear we’d ever find out about all this. It took over three years to get this report.

Mike Turner says he wants to codify some of this. That might protect leaks about Republican adversaries as much as anything (the leaks investigated here mostly pertained to Carter Page and other Trump associates). But it might be one of the few means of transparency left.