All Hell Is Going to Break Loose: Maybe Jack Smith Did Precisely What Elie Honig Claims He Didn’t
There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.
Well, now the court filings have incorporated the Willard, yet Honig seems not to have noticed (but then, he has never exhibited much awareness of what’s actually in court filings).
More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.
That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.
Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.
And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.
He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.
The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.
9-85.500 Actions that May Have an Impact on an Election
Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.
Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.
The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.
First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.
Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?
It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.
The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.
A still more obvious thing missing from the immunity filing is the Proud Boys.
Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.
The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.
[snip]
Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]
But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.
To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.
In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484
But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).
478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).
479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).
480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).
481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).
482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).
483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).
484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).
If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.
Unless you were holding them in reserve.
The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.
In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]
Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.
The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.
[seven lines redacted]
The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]
As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.
They’re both just “persons.”
At least in substitutions used in this filing.
Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.
Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.
- October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
- November 13: “Trump just fired.”
- December 13: Bannon resumes daily contact.
- December 14: Alternate electors. J6C
- January 2: “The Vice President’s role is not “ministerial.” J6C
- January 2: Trump wanted Pence briefed by Eastman immediately.
- January 4: Pre-Pence Willard Hotel meeting, from which Rudy calls Trump.
- January 4: Post-Pence Willard Hotel meeting.
- January 5: “Fuck his lawyer.”
- January 5: Call with Trump before “All hell is going to break loose.” J6C
Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).
One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.
The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.
Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.
Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.
[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”
So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).
But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.
The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376
That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.
The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.
Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.
But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.
Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.
Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.
These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.
Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.
If we get that far.
Excellent.
But is the DofJ watching the Republican candidate to see if he participates in new illegal conspiracies?
My new Conspiracy Theory is:
If there’s a conspiracy…
…he’s in it.
I gues even…. if Trump is the candidate, there will be a conspiracy
Trump has as much chance of getting another insurrection as he has of getting another erection.
Not that it won’t keep him from yanking on it.
Courts ?
Definitely.
Mass violence in the streets ? No.
Of course the Feds are watching.
That’s my suspicion, though I’ve been wrong about plenty of other things the past 8+ years. The MAGA rank and file’s response to things like his arraignments and trials could kindly be described as “anemic.” The actual legal consequences to 1/6 insurrectionists and the lack of help for them from Trump himself seems to have put them on notice.
Yohei1972 – I think ‘anemic squitter’ has a nice ring to it, and would be factually accurate.
The EW talent for considering that which is present as well as that which is absent, and proposing a rationale for the absences, is always impressive and deeply appreciated.
All that CompLit training kicking in!
I join the chorus of readers who marvel at how insightfully you predict the plot turns. I expect that the fact that you are observing from a safe distance is of help to you in that regard, but CompLit training helps. Good to have those techniques, not to mention the plots of all the Comedic/Tragedies.
I too attempt to place myself at some distance from the action to get some (any!) perspective and can offer my one contribution to your many years of unraveling this unraveling.
Needn’t fear “If we get that far.”.
We will
…and I Just Know It in my bones.
Using my own polling and assessment (Part Finance & MBA analytic methods, part Eastern Traditional Knowledge, part Bronx upbringing, being 76, and using your insights.) This too shall pass.
Indeed EW ‘s skill set is ridiculous ….I also get the impression SC is ridiculously on point and respectful of policy.
But more importantly his group doesn’t waste the taxpayers money. I see a lot of Mueller in how he goes about problem solving and I feel Dreeben is chipping in … this is a well rounded campaign. Only time can tell. IMOH.
It seems like there’s a ton of threads in all of this Bannon – Stoneish work.
I bet and hope someone on the SC team has an eye on all the SOL ‘s for their shenanigans ….
The chronic pain issue I struggle with has been off the hook for about the past two months. It’s a challenge to spend time reading much less processing information with much complexity to it. Contributing to online conversations, impossible when pain eats most of your cognitive bandwidth.
Dr. Wheeler, you’ve been critical in the past two months of my effort to stay connected to the outside world when my pain is consuming my mental bandwidth and separating me from the world.
I can’t focus or process legal filings at the moment and I can’t keep up with the chattering class and punditry. Your posts have been so helpful in breaking down these filings I can’t digest and your critiques of reporting on the election have had lots of links to click through as I just can’t weed through the reporting right now.
The little times of focus I have for the Internet right now is almost exclusively spent here. Well worth it to a political junkie stuck in bed on my back loopy with pain during such an impactful time. I get anxiety from feeling so disconnected and unable to contribute. But I can spend a little time here and feel plugged in to the zeitgeist for a sanity preserving bit.
I just wanted to say Thank You to you, Rayne, other contributors and the most thoughtful community in the comments section I have the privilege to read and interact with.
I wish I could articulate better how grateful I am for Emptywheel, but I’ll just babble if I try to say more. I’m just one person, but you make a world of difference in my attempt to stay connected to the world and ease my isolation on some of the worst days.
So keep going lady, October will be one hell of a ride one way or another and I depend on your analysis of roller coasters!
Unbelievably outstanding research and attention to detail! Bravo!
Either Elie Honig doesn’t have the time to personally conduct the research you do, doesn’t have the staff to do it for him, doesn’t know how to do it correctly and in a timely manner, or he’s become an apprentice MAGA attorney striving to someday represent Trump on TV or in a future Trump Administration; therefore, he’s in Trump’s huddle hearing and seeing the plays as they are drawn in the dirt.
My guess is Honig is auditioning for a job in a future Trump Administration and is being encouraged to support Trump by some of Trump’s billionaire backers, including but not limited to, Miriam Adelson.
The J-6 Committee showed the public the best they could what crimes Trump and his cult followers committed. And now Smith and Chutkan have shown the public more.
If Trump is elected next month, the public will learn no more.
My fear is too many members of the public in the critical swing states don’t care about learning the truth or have been brainwashed, like the Manson family members were circa 1969-75, into believing Trump is Jesus reincarnated (Just like Charlie Manson was according to his followers) and he is campaigning for president to preserve the nation as it was before the passage of the 1960s Civil Rights Acts/Laws.
Honig lets others do the thinking for him.
Common practice these days.
Trump is almost exactly like Hitler (and yes, I’m aware of Godwin’s Law), in that his appeal is that he hates what his audience hates, and he announces it loudly, thus giving permission to the audience to publicly express hatreds which mostly they would keep to themselves or a small group of friends. So facts are never going to reach that segment of his audience. They will vote for hatred.
As to Honig, my read of some of his earlier comments (more than a year back) is that they were anti-Trump and pro-prosecution. What seems to have curdled his brain is he decided that Garland was not moving fast enough. Honig would’ve preferred charging Trump with all kinds of stuff without doing the preparatory trial work on the Proud Boys and other rioters. That approach would’ve been doomed to failure, but Honig seems to prefer flash over substance, and he’s convinced he’s right and everyone else is wrong. That way lies conspiracy theorizing, which I shortly expect him to take up – he may have already: I stopped reading him a while ago.
“…he’s convinced he’s right and everyone else is wrong.” – The Tragic Flaw.
About Trump, you got him made pretty good.
One thing I’d add to your description (“he hates what his audience hates, and he announces it loudly, thus giving permission to the audience to publicly express hatreds which mostly they would keep to themselves or a small group of friends. So facts are never going to reach that segment of his audience. They will vote for hatred.” is that he hates even more than he expresses, but not completely what his followers hate. So he’s willing to express hatred for things his followers hate (even though they are not things that bother him at all…like richies) but tempers the true extent of his hatred (like of his followers).
He’s The Master Hater.
Because he hates his mother, fears his father, can’t stand himself…need I go on?
hates most women
hates Black people
Jewish resilience and strength
people who see through him
the list is endless.
And he was our President.
Who are we?
My take on Honig FWIW
is that he is a lazy sloppy analyst.
So he sicced onto a bothsider schtick:
1) to give himself a veneer of Olympian detachment
and 2) to try and assure himself of relevance as a pundit within an MSM ever more committed to both-sidesing for Trump.
Hopefully not, but he wouldn’t be the first whom curdled frustration has led down a wrong path.
As for this damnably persistent media bothsides-ism, it’s just one more example of how everything Trump touches turns to sh*t. Their owners may hope that carefully overlooking TFG’s self-evident unfitness to govern will enhance sales and thus aid their struggling finances, but before long the consequent reputational damage will only sink them.
When I read the article (and many recent, previous articles), I thought Honig was trying to position himself as the reasonable centrist, one who won’t get sent to the media internment camp in case of a Trump win, but one who didn’t stray too far to alienate Harris supporters in the event of her victory. Which in my mind makes his analysis totally meaningless
Yep – definitely going with ‘persphinctery’ as an honorific for Mr. Honig. ‘Per’ from Latin translates to ‘through’ or ‘by means of’.
It will never be as bonafide as the Rick Santorum “Google Problem” (H/T Dan Savage) but it seems to suit him.
Thank you for the post Marcy Wheeler, however the people who most need to read this blog will unlikely do so. That would be in my estimation the 30% – 35% of the population who are die-hard Faux News adherents and have no care or cause to look outside their echo chamber.
1. “The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.”
2 “Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.”
3. “These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.
Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.
If we get that far.”
Isn’t the strategic calculation to have a clean revision of the indictment on which to fight the immunity issue, knowing that there will be a drawn out process of interlocutory appeals up to SCOTUS?
Too radical an expansion of the factual basis of the indictment, (let alone the introduction of any additional legal theories of criminality) would have afforded Trump too much scope to throw sand in the gears. Furthermore, obviously any new charges, or novel bases for conviction on existing conspiracies. would also have given some appearance of legitimacy to Trump’s complaints about electoral interference.
But my essential point is this, the resolution of interlocutory appeals on Immunity, *if Trump is not elected* is a long way down the track.
Deftly seeding the possibility of further subsequent revisions of the indictment, while avoiding any pitfalls for the time being, is surely the smart choice by SC to proceed with the greatest expedition he can for now.
Thank you for another great analysis teasing out the details framing how we should think about Smith’s strategic calculus.
I thought a lot about that.
First, I think if they were to charge financial fraud for the fundraising, they would do it totally separate, to remove it entirely from questions of immunity.
I think they didn’t add Roman (who they decided would be a CC by December) or Bannon (which may have happened after that) to the list of CCs to keep it simple, but also to avoid adding someone in the 90 days.
But if they were going to expand to stoking violence, they might do that ASAP after the election to justify changing release conditions.
” they might do that ASAP after the election to justify changing release conditions.”
Wow
“But if they were going to expand to stoking violence, they might do that ASAP after the election to justify changing release conditions.”
On the assumption of a Trump election loss, I can see the logic that there is a present danger of violence, thus an additional justification would exist for an expansion of the indictment — beyond having the evidence for his stoking violence in 2020/21, and so altering Trump’s release conditions.
But following such logic through might have interesting further consequences.
For such reasoning would also justify charging Co-conspirators in the 2020/21 events. Bannon is an obvious candidate, already named in the indictment but there are clearly others, eg Stone and Flynn, for whom the SC may have evidence of being conduits to J6 ers.
Interesting. The implicit prosecutorial threat to “up the ante” after another election loss for Trump in Nov. might encourage an even more desperate attempt to overturn the upcoming result.
OTOH, Smith is effectively “firing a shot across the bows” of any wannabe recidivists because any future misbehaviour would further justify pursuing these currently-unindicted co-conspirators, and after a Trump loss these folks would have absolutely nowhere to go.
Hmmm, what a tantalising dilemma for them all. Double down or fold…?
Keynote
Looks to be a bad omen
for co-conspirator Mike Roman
Now we see that Jack’s been combin’
through the regs for Trump, the showman
Rally goers exited as he ran on
How long can he keep the spray tan on
What about that concept of a plan on
hell breaking loose he told to Steve Bannon
We’ve seen the mirror through the smoke
and the violence Trump meant to stoke
Jack waits to give the bear a poke
There’s a lot more left that he’ll uncloak
Smith is standing back and by
just American as apple pie
to hold to account Trump’s Big Lie
forever in the collective mind’s eye
But first we have to cast a vote
to keep the Constitution afloat
So make sure you don’t miss the boat
Kamala’s a winner with the best keynote
It also is the case that Smith superceded the indictment and made these filings based on SCOTUS ordering Judge Chutkan to hold a review of the case based on their bizarre immunity rules. “OK,” says Chutkan, “Let’s see what you think is still standing.” Says Smith: “We’ll get right on that.” Smith appears to have been very careful at keeping the superceding indictment within the bounds of the previous indictment, to explain why everything still included meets the rules set by SCOTUS.
That’s a far cry from a prosecutor deciding on their own to file new charges against a major political candidate within 90 days of the election.
So what you’re saying is . . . Jack Smith is telling the Proud Boys to stand back and stand by?
(I couldn’t resist.)
Did you peek? It was at one point part of the title of this post.
But I think I’ve done that a few times.
No peeking; just admiring the gift you left right there in the open for us.
(I just got home from a loooooong day at church, and spent most of yesterday prepping for a looooong day at church.)
You must get so tired lugging around those stone tablets! :~)
Nah, I just have them memorized. Much easier that way.
You’re always an inspiration, Marcy. But I am intrigued by your references to CompLit, even though I don’t understand the particulars.
Marcy’s PhD is in CompLit, where she did a great deal of close reading of various texts — skills that are highly appropriate for the kind of writing/research she does here. Some reporters cultivate sources and do access journalism; Marcy delves deeply into documents, carefully sifting out what is and is not said, comparing this document with those documents, and teasing our meaning that most access journalists miss.
(My PhD is in religion, and the close reading of texts in that genre also serves me well around here.)
The Curious Incident of the Dog in the Night-Time
Apologies for not being able to figure out how to create a link here.
Reply to tomstickler –
Good comparison, however I do not think Ms. Wheeler is on the same axis as *Christopher John Francis Boone.
Or Raymond Babbitt.
Since I have CDO (a lot like OCD but the letters are in the right order…) I caught the reference.
Genuine investigative journalism is a rare gift – all the more reason to keep The Felon Guy away from the levers of power; we cannot afford to have independent, investigative journalism threatened as the Enemy of the People.
*I have a first edition hard cover edition if anyone wants to borrow it…
I think you’re Honig in on something here.
Very sharp of you to notice that.
oil be darned, playing it up to the hilt.
Obligatory best fencing sequence in film history.
And I am not left-handed either.
(I also do not have six fingers on my left hand)
*best potato fencing Inigo Montoya voice*
‘Allo, my name is Idaho Montoya, you peeled my father – prepare to fry!’
Showing myself out now…
Benji, I want to share a beer or five with you.
Peterr, okay – Guinness Extra Stout please.
Big bottle of Jamesons works well too.
On a serious note my place in Alleghany County NC (with plenty of Guinness and Jamesons in stock by-the-by) got hammered pretty good a week ago Friday – but since it had rained here at 2950 feet every other – every third day for two weeks prior the ground was damn well saturated before Helene visited.
All that water had no sluice valve or gate so down the mountain it went, apologies to the folks in Boone and Asheville. I am still cleaning up but on the sunny side of it now.
I stayed in my home in Cutler Ridge for Andrew – while that was a nightmare hurricane I believe Helene was much worse.
Elie-vaded
Elie the sycophant flacked his bunk
And said goodbye to due process
Of he went with a Trumpety Trump
Trump Trump Trump
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2792674/
The Special Counsel has another purpose in the evidence he has revealed. If VP Harris wins, Smith has shown that any conspiracy to alter the result will be unraveled. It could be that the FBI has already penetrated the conspiracies. The amount of information in the Sp Counsel brief would seem to have a deterrent effect, not on the Republican nominee, but on potential election interference conspirators.
If so, much to be desired. (And besides, steady hands on the tiller this time round.)
But there must surely remain some within the MAGA food chain for whom the stakes are too high to quit now, and are thus blind to “signalling”. If not outright mob violence, likely swarms of lawyers in the swing states ready and waiting to stall vote delivery there, with appeals going all the way to you-know-where.
They are surely not just praying mightily for a legitimate win. It would certainly save some precious necks, but somehow I doubt that’s the only chance all are willing to rely upon, especially when things are so tight.
Has anyone in the Willard loop possibly already cut a deal with Smith…?
Outdone even your amazing record here, EW. Particularly pleased to see the CompLit skills in full flow.
We will have a new version of the two realities problem after the election, assuming Harris wins (the only interesting case here). If Smith files anything new, his counsel will argue that the election is still ongoing because he won and the world just doesn’t know that yet. So inappropriate election interference to file anything.
I keep going back to footnote three in Roberts’ majority opinion. I’ve been a lawyer for 30-plus years, have read it over and over again, and still don’t know what it will mean in real-life practice. A lot of smart commentators haven’t been able to figure it out either.
Whatever it means, there is an enormous amount riding on it. How it gets construed – not just by Chutkan but all the way up the chain – is going to make a huge difference to the viability of this case.
It’s possible that Roberts couldn’t corral enough of his colleagues to agree on something more specific. The cynic in me, on the other hand, thinks Roberts wanted to leave this open-ended on purpose. If that’s true, that means the Court left itself some room to shape that footnote into whatever it wants – depending, of course, on who occupies the Oval Office when the issue comes up.
Once Trump appeals one time and footnote 3 is decided on that appeal, are chances good that footnote 3 will still be left ambiguous?
Would it be expected that Chutkan has to make mtiple passes at this or is SCOTUS expected to clarify all of Trump’s lower court specifics this time around?
None of this is absolutely certain, of course. But it’s more likely that they’ll be one appeal of Chutkan’s decisions on this.
The Supremes will almost certainly provide some clarity about what fn 3 means. I think the nature of the case and the evidence Smith intends to use will require that. But as with many newly-announced legal doctrines, it could take a long time for the federal courts to decide enough cases to give prosecutors and defense lawyers a road map about how to apply it.
If Trump loses the election, and if Trump looses at trial, *this* SCOTUS could simply agree with Cannon, that appointing an outside attorney as special council required Confirmation Clause action, which was absent, and pitch it all out that way. Not fleshing out the footnote.
Is it likely, as with the insurrection clause of the Fourteenth Amendment, deciding it once Trump’s way on ballot rights, going Cannon’s way would stick, and be done. There’d be no special counsel further authority challenges, because all/any future special counsels would go before the Senate before acting. Or if the other party held the Senate, appoint from within, as with Hunter Biden, would be the option. Decided once, no further contest. (Absent a Biden lame duck pardon of Hunter, his case goes to SCOTUS and Cannon’s ruling and keeping Hunter on the hook would work out to saying appointing a Special Counsel from within DOJ conforms to a reassignment of personnel, which DOJ has traditionally had *original* discretionary authority to do, absent facing the Senate.)
If it is thrown out per Cannon, Trump and a Dem DOJ could reach a no retrial, no rerun for President deal, letting young Vance have free rope with the MAGA base, and details of immunity scope remaining for the future Courts to flesh out.
The DoJ would never agree to an outcome of a Trump prosecution that relies on him keeping his word. So, no deferred prosecution agreement in exchange for not running for office.
Separately, the optics would be insane. It would either be seen as a betrayal of MAGA or elevate Trump’s victimhood to gargantuan proportions, which he would use as cover to break a promise he intended to break when he made it. It would drive the MAGATs to the streets, which is where Trump and Vance want them.
What about witnesses at trial? The KISS dimension? The conspiracy was over knowingly false elector lists where Pence refused to participate. Pence is the key prosecution witness, plus documents. Pence will tell his story. It’s a nice story. What of those who took pleas in Georgia? They are witnesses the prosecution now owns. Who has Trump to call? His coconspirators are not wanting to say Boo, and will be counseled not to. You prosecute a second issue, the riot, not keeping a focus on the false elector conspiracy, you complicate things, and then can a rioter or two be relevant witnesses for the defense?
It seems a trial plan is to leave Trump no witnesses to call. It’s what I’d do. The story to the jury is: He lost, he knew he lost, he cooked a conspiracy where working to include Pence was key, Pence declined after being informed, Pence testifies about who did what, faces cross, the paper evidence exists and cannot lie, and then who can Trump call? People who’d take the Fifth in front of a jury? What defense can he make? The Proud Boys are a distraction from keeping it simple. That could be a separate trial, with statute of limitations considerations.
All predicated on Trump loosing again. And what he does this time if he looses and the Capitol will be secured by rings of National Guard this time, with Harris having the Pence role this time. If he wins, it is a dead issue, if he looses, it remains alive. But he knows trying to cook fake elector stuff this time will have others with a reluctance to join, so all he has is another riot, but against a security perimeter.
I figure Vice President Harris wins.
If not, which I can’t conceive, should I expect that all the lone wolf “assassins” will come gunning for Donald?
I never noticed that there are two “ass[es] in “assassins”. Gotta’ love language!
OT: no new national aggregate polls on the Presidential contest have been released? How does Ms. Wheeler’s methodology apply to that absence?
Expand your event horizon.
I’m hoping for a discussion here of the American Enterprise Institute hit job on Jack Smith, authored by Jack Goldsmith in today’s NYT. I haven’t provided the link because I know you have strict rules regarding the proper way to link. I’ll go back to some previous comments that describe how to do it properly.
Marcy writes about it here:
https://www.emptywheel.net/2024/10/09/bombshell-news-jack-smith-did-consult-about-timing-before-adopting-post-scotus-path/