The January 6 Report Is Substantially the Immunity Brief Reporters Ignored in October
I want to say something about the structure of Jack Smith’s report. For his description of Trump’s alleged crimes, he includes a fairly high level narrative in the text, with detailed footnotes.
A great number of the footnotes — around 178 of them — cite to ECF 252.
ECF 252 is the immunity brief Jack Smith fought hard, over Trump’s objections, to submit in October. The footnotes often then cite the Special Counsel’s Bates stamp identifying that piece of evidence and include a short description of the source.
Take this footnote:
It sources this assertion in the report itself:
Under this plan, they would organize the people who would have served as Mr. Trump’s electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to sign and send to Washington false certifications claiming to be the legitimate electors. 39
It cites to the following language in the immunity brief:
So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly “dueling” slates to the state legislatures for consideration anew.
[snip]
Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.301 When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote.302
And this footnote in the immunity brief.
As advertised, the footnote links to the Appendix and (in this case) the actual fake elector certificates.
In other words, for the narrative sourced to ECF 252 (one part of the narrative not sourced to the immunity brief pertains to the riot itself), we’ve already gotten this material. We got it in October, before the election.
It got only passing coverage.
We got much of this report, in more detailed form, in October. Many of the people who claim releasing this report would have made a difference in the election didn’t read the immunity brief in October, much less make a big deal about it.
The structure is significant for a few more reasons. First, the footnotes in this report sometimes provide more description about what appears in the appendix. Second, for those (including state Attorneys General) who want the evidence from Smith’s prosecution, the place to go is Tanya Chutkan, because it’s all there in her docket, sealed.
Yes, in general people do not read or – if they do – do not comprehend. Or worse choose to ignore. I am “guilty” of at least one of those – it’s usually the comprehension part.
John Lithgow and company acted out the Mueller Report for wide consumption:
https://youtu.be/jeGZ-xL6FNU?si=W24n3LWXwKC1D18X
I hope that there will be something similar. And on all broadcast sources. It may not do much beyond causing Trump some heartburn, but that in and of itself….
Pete
But, here, Marcy is not talking to people in general who “do not read”.
She is talking to the MEDIA and the “Lefty Pundits” who DID not read…
…who DID NOT DO THEIR JOBS.
Completely AGREE. Good point. If only this becomes a teaching moment. Hope springs eternal, but…
Brandi Buchman is one person who DID DO the job…
and is being attacked by people doing “QAnon style thinking” [< Marcy's words]
https://bsky.app/profile/brandibuchman.bsky.social/post/3lfp7e7wfvk2i
January 14, 2025 at 7:02 AM
What Brandi wrote:
https://bsky.app/profile/brandibuchman.bsky.social/post/3lfp4feouts2z
January 14, 2025 at 6:09 AM
Agree here too as well. Posted this to Brandi on BlueSky.
“Curious what you think about the role state Governors and AGs might take with respect to causing him much legal pain. There is/was New York. Would seem California might have a time or two at bat. Unclear to me if this might even be a productive “beat” as well.”
A little late for that now, unless they want to spend the next four years “Do your own research[ing]” and praying for a medical miracle. “President Trump” (whose fawning disciples never stopped calling him by that title and never will now, as if he had somehow achieved a form of Eternal Presidency) has not been looking hale and hearty lately.
Can you picture him four years and a week from now, the day he leaves office for good? Plus, visible frailty would serve him well in a courtroom, should he make it that far, which seems unlikely.
We need to wean ourselves off expecting the justice system to re-establish whatever order we like to imagine the US embodied. That memory? Nothing more than a dream. And not even your own dream, but someone else’s.
Could emptywheel.net provide a refresher key to the unindicted in Jack Smith’s report?
Thanks for all your work.
[Thanks for updating your username to meet the 8-letter minimum. Please be sure to use the same username and email address each time you comment so that community members get to know you. /~Rayne]
1 Rudy
2 Eastman
3 Sidney Powell
4 Jeffrey Clark
5 Ken Chesebro
6 Boris Epshteyn
Plus
Bannon
Mike Roman
Emptywheel:
“Second, for those (including state Attorneys General) who want the evidence from Smith’s prosecution, the place to go is Tanya Chutkan, because it’s all there in her docket, sealed.”
Jack Smith:
“Indeed, Mr. Trump’s cases represented ones “in which the offense [was] the most flagrant, the public harm the greatest, and the proof the most certain.” [Robert H.] Jackson, “The Federal Prosecutor.” […]
It seems like these two quotes go together for future action.
Allison Gill [Mueller She Wrote] has a good THREAD about timing and delays:
https://bsky.app/profile/muellershewrote.bsky.social/post/3lfosinq2p22e
January 14, 2025 at 3:11 AM
If it is at all helpful, on my bsky I reposted each of the 7 posts in that thread with page and footnote number for the quotes
Or add your own from here
1/ Fn249 p93
2/. Fn251 p93
3/. p 110
4/. Fn 259 p 111-2
5/. p 118
6/. p 116 (!)
END p137
I kind of wonder what the 6 “esteemed” SC justices think of their votes for giving him immunity. If it were not so undermining it’d be laughable. My guess is that all 6 are just fine and dandy. What a joke.
as a recovering cynic firmly off the wagon, i’m picturing that Supreme Court majority smiling at the hue & cry, and luxuriating in their power.
The WaPo, like all the other Billionaire Media (BM for short) leads with Smith thinks the evidence was strong and sufficient to get a conviction and sustain it. Apparently they don’t know that Smith would not have indicted the bleeding bag of guts if that were not the case.
Then they say that much of the evidence was in the October brief. Then they move along.
If only they thought it important enough write hundreds of articles and doing their own investigations, instead of credulously reporting whatever that poxy rat-pizzle said with no context and no regard for reality.
“Accessory”
They were beating on the windows with their tire bars and rakes
Now they’re hiding in the smoke that rises from your screaming brakes
But you never noticed-
you were too busy, sitting in the back seat, watchin’ it on the video.
Well you fancy yourself a criminal, man,
But you ain’t nothin’,
You’re just an Accessory
The media can’t afford the cost of actual research in reportage. It’s more economical to just repost the social media feeds, after stripping them of any actionable content. After all, who could afford legal challenges from a billionaire? Bezos? Nah.
Rhetoric is involves the structure of persuasion. In Aristotle’s framework, I think the logos was the same with the Immunity Brief, but maybe the ethos and pathos are different with the January 6 report. Even if much of the factual material is a repeat, this form is a coda of the investigation, “it’s final word”. Neither report will persuade. Many people will continue with a false picture, but the release into the light before Trump takes office is the The Good News. It makes History, and preserves the Truth, though only as an inference of the preponderate likelihood of Trump’s guilt, not beyond a reasonable doubt.
However, for the true inference of the preponderate likelihood of Trump’s guilt in an attempt to overthrow the constitutional order to exist at the time Trump is still assuming office, symbolically, either through fear or animus, may create the conditions for “normal people” in the country to realize the law doesn’t mean anything and might strengthen the Dear Leader cult around Trump for law to still exist.
Whatever that’s supposed to mean – my college adviser would have used at least three differently colored pens to describe what needs attention — you could probably have said it in half as many words.
same to you, bucko.
quite like and quite get what he wrote. really good to have writing around that isn’t polished to economic overkill. keeps one sharp. we all get enough and more, straight, higher ed submissive writing product, and have for years. language isn’t straight and shouldn’t be idealized and fetishized as so. bending is it measure. breaking is beautiful. play a little ya uppity word gargler!
not sure why you bring your mentor into this situation,
clearly your mentor didn’t divest you of wasteful commentary on the blogs, so how could said advisor help us or anyone else?
Knock it off. EoH has been with this site as a commenter since April 2007; he knows quite well what effective commenting looks like.
If you attack another commenter with an ad hominem you will remain in auto-moderation.
Thanks Marcy for the footnote and feedback on Jack Smith’s report.
It was a good fight – Progressives and people who believe in the Rule of Law still lost. This post may get me kicked off the site. I apologize to any tender hearts that disagree in advance.
Maybe holding the corruption coming onto the USA will lead to change – but a new process has to be explored.
– Biden, DOJ, Garland & Jack Smith’s failure to stop a career Criminal trump, will directly secure 50 more years of Manifest Destiny for White mediocre men in the USA. The new Supreme Court after 4 more years of tump is going to be horrendous. New SCJ are just the tip of the iceberg cementing that disgusting fate with the failure to dent GOP rotting the USA.
Rome is burning. The constitution and the rule of law will have no real meaning after Trump’s inauguration. Truth needs to be faced.
This will sound controversial – and I mean it to be. I hope it does piss off people so they will act in their own interests and fight fire with fire.
The Criminal defense lawyers hired by Trump have won. Jack Smith and the do gooders at DOJ who follow the rules have lost.
Sickening to see that good prosecutors with high standards get overthrown by corrupt GOP politicians, the Bill Barr Opus Dei league and the Federalist Society SCJ. Very hard to accept that fate – but history will prove that Citizens United and failure to stop the corruption was due to two elections – lost by two very competent women to a disgusting white male criminal and bigot.
Billionaires run the USA and the 77 million people who voted for Trump and the GOP do not care.
Thank you Marcy and others for continuing the fight- Resistance is not futile – Change is going to have the people who want positive change doing some hard nosed thinking about how to actually win elections.
The Failure of Jack Smith to get to trial, proves once and for all that The rule of law is not going to save us.
The Democrats have no message that can rise the masses if they keep nominating women to take on even pathetic white men.
– Perhaps the Trump years are what the USA -Democrats deserves for worrying more about gender pronouns, the little guy, the poor and the rule of law instead of fighting for power using the full power of so-called “manifest destiny” as a weapon to secure real change.
Losing Elections has real consequences. YOU think Social Security , the environment, healthcare, etc is safe, just Look what they did to Roe V Wade!
Women are not safe and have less rights now than 10 years ago. It is getting worse ..not better. President Biden and VP Harris did an outstanding job and it didn’t matter a whit! Not a whit to the racists and bigots who voted MAGA.
Instead of Obamacare when the Democrats had 60 Senate votes, they could have made DC and Puerto Rico states with 4 more progressive Senators. They could have changed the Filibuster – ended gerrymandering, restored the Voting Rights enforcement mechanisms and changed the next 50 years to be progressive. But no – people thought kindness would win so we got Obamacare. –Grateful for Obamacare – sad that actual democracy is now only a memory – Oligarchy is now the ruling power.
Never bring a knife to a gun fight. Facts matter. USA is not ready for a woman to be President. This sounds awful I know – it sickens me as well, but that is the truth in this country. My 21 year old daughter will suffer needlessly for this failure of my generation to win elections for her future.
Men that have a heart and a brain have to lead to get the votes of enough decent people to block MAGA. – Proven in 2016 and 2024- The Total failure of women to get it over the line against Trump ( I am not blaming the women who ran – but the ones who are racist and full of hatred of other successful women) That cost progressives dearly. And it got worse – 2024 was a worse loss than 2016.
– Joe Biden beat trump – cause he is a white male & that is acceptable to enough centrists. Fact. The USA electorate is only ready for men in power..truth hurts …but it is still true. Obama won in 2008 and that caused the full on revolt of racists to become the dominate form of GOP politics. Triggering Manifest Destiny and the comeback of racists and misogynist.
GOP just exploited the Original sin of the USA.
And Won elections!! Twice – full control – White House, Senate and House..and took over the Supreme Court as well after 2016.
May all the her/she/thems be spared much more abuse at the hands of serial criminals like Trump, Bannon, Pete Hegseth, Speaker Johnson, SCJ Thomas, Roberts etc.
Nominate people who can win or Rome will continue to burn. Many progressive people need to wake up to the truth – even if it is a gut punch.