I keep thinking back to this June 2023 exchange between Matt Gaetz and John Durham.

It came at the end of Durham’s testimony after delivering his report, in which Durham said a lot of inflammatory things, but ultimately concluded that the allegations of Russian interference should have been investigated, but should have been opened at a lower level of investigation.

After four years, Durham blamed Hillary Clinton for things Russians (like those suspected of filling the Christopher Steele dossier with disinformation) had done. But he hadn’t done the one thing Republicans needed him to do: assert that the Russian investigation was a hoax.

At the end of it, Jim Jordan adopted a tactic he has come to use in his hearings. He took a break for votes, giving staffers a half hour to prepare a rebuttal. And then three Republican members took turns, including Matt Gaetz for his second turn, unrebutted by any Democratic member.

He came prepared.

Gaetz cued up video from Robert Mueller’s July 2019 testimony, showing Jim Jordan grilling Mueller about Joseph Mifsud. Jordan asserted that Bill Barr and John Durham were trying to find out what Mifsud was doing. After Durham responded that they did try to pursue that angle, Gaetz asserted that Durham’s investigation was “an op.”

You had years to find out the answer to what Mr. Jordan said was the seminal question, and you don’t have it. It just begs the question whether or not you were really trying to find that out. Because it’s one thing to criticize the FBI for their FISA violations, to write a report. They’ve been criticized in plenty of reports. Some have referred to your work as just a repackaging and regurgitation of what the Inspector General already told us. So if you weren’t going to do what Mr. Jordan said you were going to do in that video, and give us the basis for all of it, what’s this all been about?

Now, in point of fact, who Mifsud really was was never the seminal question. Or rather, he only ever became a question via conspiracy theories Jordan and Mark Meadows laundered through a sham Congressional appearance from George Papadopoulos. Under their direction, the Coffee Boy provided no primary documentation with which staffers could hold him to account. Instead, Papadopoulos laundered conspiracy theories first posted in right wing propaganda outlets.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. [my emphasis]

And that’s what led Barr and Durham to jump on a plane together and chase Papadopoulos’ conspiracy theories — without ever interviewing Papadopoulos directly. Mifsud’s own lawyer — the one who couldn’t help Durham figure out how to subpoena him — who started the conspiracy theory that Mifsud worked for Western, not Russian, spies.

Durham and Barr did more than just chase Papadopoulos’ conspiracy theories together. Durham fabricated a key part of the theory of his case. He ignored key events — most notably, Trump’s invitation for Russia to hack his opponent — that made all the actions of Hillary’s people make sense. He relied on a Twitter account as the foundation of his indictment against Igor Danchenko, then whined when such communications were deemed inadmissible without a witness to introduce them.

Yet ultimately, the rules of criminal procedure and some very very good defense attorneys (no doubt paid with life savings) managed to thwart Durham’s efforts to spin from his own fevered imaginations a conspiracy implicating Hillary Clinton.

For that, Matt Gaetz accused Durham of “inoculating” the FBI.

Your report seems to be less an indictment of the FBI and more of an inoculation — lower case I, of course. And like many inoculations, it may have worse consequences down the road. It’s just hard to pretend as though this was a sincere effort. When you don’t get to the fundamental thing that started the whole deal.

Because reality ultimately debunked Durham’s conspiracy theories, Gaetz deemed him to be part of the Deep State.

I get that Matt Gaetz’ nomination is one of the most likely to be rejected by the Senate. I get that there’s still a chance this guy — the guy who proclaims even a fellow conspiracist part of the Deep State if he permits himself to discover that reality doesn’t back his fever dreams — won’t be Attorney General.

But this is what it means that Trump wants to take a hammer to DOJ and FBI: not just that they’ll avoid any investigations implicating Trump or his allies, but they will find a way to meld reality to their own myth.

As it was, Bill Barr’s DOJ added post-it notes to evidence in ways that happened to feed Trump’s myth of grievance. They claimed travel records of the informant with something akin to a Let’s go Brandon cap matched his claims about Joe Biden accepting a bribe when, purportedly, the opposite is true.

Bill Barr’s DOJ already made shit up to feed Trump’s myth.

Since then, a Trump judge admitted a laptop full of evidence at a criminal trial with little more validation than an access to an iCloud account to which multiple outsiders had access, and an email sent to a publicly available email address.

But whoever Trump installs atop DOJ will take all this one step further. No longer will it be a select crony US Attorneys who forget to remove post-it notes with erroneous but convenient dates or claim travel records say the opposite of what they actually say. It will be the litmus test from the top: Donald Trump’s myths cannot fail, they can only be failed.

In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

• March 5 discovery letter asking for communications involving Pittsburgh
• May 28 discovery letter reiterating request for all FD-1023s
• August 28 discovery letter asking for request Hunter Biden made of State
• September 27 letter asking (among other things) for all FD-1023s from Smirnov and his handler
• October 2 email following up on discovery requests

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

• April 5 discovery letter
• August 13 Ken Vogel story

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

• Preclude reference to lawfully owned guns
• Preclude reference to disloyalty
• Take judicial notice of Hunter Biden’s failed plea hearing
• Preclude reference to September 27, 2023 interview

November 1: Government motions in limine

• Preclude expert witness Gregory Scott Rogers (regarding handling errors)
  • Expert notice
• Exclude handling agent’s alleged mistakes
• Exclude evidence of honesty
• Exclude defects in prosecution
• Exclude irrelevant factual issues

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

• Derek Hines declaration
• FD-1023s

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

• Preclude expert witness Gregory Scott Rogers
• Exclude handling agent’s alleged mistakes
• Exclude evidence of honesty
• Exclude defects in prosecution
• Exclude irrelevant factual issues

October 31: Government response to motions in limine

• Preclude reference to lawfully owned guns
• Preclude reference to disloyalty
• Take judicial notice of Hunter Biden’s failed plea hearing
• Preclude reference to September 27, 2023 interview

In this appearance on BradCast last week, I scoffed a bit at this Devlin Barrett/Glenn Thrush piece. The headline news — that Jack Smith will step down before Trump comes in — was fairly obvious from Smith’s request for three weeks to figure out what to do. The focus on Smith’s obligatory report is something I made clear a week earlier. To be sure, the piece relies on interviews to confirm that Smith (and his staff) will resign, that only outside decisions could thwart their effort to finish up, that Smith has encouraged those who don’t have to stick around to move on.

It’s this section, which aside from the assertion that most of the classification vetting has already been done, is not attributed to the anonymous sources for the story (but which could rely on background sources), that I find odd.

Justice Department regulations require a special counsel’s report to explain why the prosecutor decided to file the charges they did, and why they decided not to file any other charges they considered.

But like much of Mr. Smith’s work involving Mr. Trump, this step is fraught with both technical and practical challenges that could make the report significantly different — and shorter — from the lengthy tomes produced by other recent special counsels. It also unlikely to contain much in the way of new or revelatory disclosures.

Mr. Smith, who has been the subject of round-the-clock protection after receiving death threats since taking over, has already described much of the evidence and legal theories behind the election obstruction indictment. Since he filed two separate and lengthy indictments last year against Mr. Trump, he has supplemented that record with scores of court filings elaborating on the allegations.

One potential wrinkle for the filing and release of Mr. Smith’s report is that it may have to undergo a careful review by U.S. intelligence agencies for any classified information. That can be a lengthy process. Intelligence agencies took weeks to review Mr. Hur’s report.

But in the case of Mr. Smith’s final report, most of that vetting has already been done, so officials expect that step to take little time.

It correctly describes that Special Counsel regulations require them to report on why they filed particular charges … but also why they didn’t file other charges, their declination decisions, but then suggests we’ve already seen what there is to see.

Jack Smith’s declination decisions are one place where a report might get interesting. Just as one example, the search warrant for Mar-a-Lago listed three suspected crimes: 18 USC 793(e) (retaining national defense information) and 18 USC 1519 (concealing a document to obstruct an investigation), both of which were charged. But it also listed 18 USC 2071 (removal of documents). That crime was not charged, even though the indictment describes that Trump personally oversaw the process of packing up boxes (that a witness described Trump knew) containing classified documents to send to Mar-a-Lago.

In January 2021, as he was preparing to leave the White House, TRUMP and his White House staff, including NAUTA, packed items, including some of TRUMP’s boxes. TRUMP was personally involved in this process. TRUMP caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.

Since the warrant was made public, there has been a pretty heated discussion about 2071, not least because Republicans claimed that Smith had considered charging it, which carries a light three year maximum sentence but also disqualifies someone from holding office again, as a way to disqualify Trump from running for President.

There are at least two obvious explanations for why Smith didn’t charge 2071. Perhaps it would be impossible to charge a President under 2071, given that until noon on January 20, 2021, he had authority to do whatever he wanted with those classified documents, sending them off while he was still President. Or perhaps Smith thought he could have charged it, but first needed the testimony of one of the key people involved in the packing process: Walt Nauta.

The reasons behind that prosecutorial decision not to charge Trump for intentionally taking classified documents with him are interesting for another reason. Among the classified documents discovered at Mar-a-Lago that weren’t charged is a “compilation” that mixed communications with “a book author, a religious leader, and a pollster” with some kind of classified information.

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

These documents are nowhere near as sensitive as the ones actually charged against Trump; prosecutors probably prioritized documents that it would be easy to convince a jury they were “national defense information” for the indictment, an explanation that also may appear in the report. But the compilation of classified information with a pollster’s message also suggest that Trump not only took classified documents home, but he used them as part of his campaign to get elected again (it would be particularly interesting if this document pertained to something like Israel).

And note NYT’s description that “most of that vetting has already been done”? In discovery communications, prosecutors have described that some of the classified documents found at Mar-a-Lago have since been declassified; for others, prosecutors would have been working on substitutions they might use in case of trial. So for less sensitive documents, prosecutors may be able to describe precisely what Trump took.

Another classified document, classified Secret, found at Mar-a-Lago but not charged is the very first classified document the FBI found, something pertaining to Emmanuel Macron and associated, in some way, with an Executive Grant of Clemency for Roger Stone stashed (unlike all the other pardon packages found in the search) in Trump’s own desk drawer. I’ll admit that, given my understanding of the Stone investigation, I’m particularly interested in this file, but here’s to hoping that prosecutors will satisfy my curiosity about the document.

There are similarly important declination decisions on the January 6 side of the investigation.

The most obvious of those is why Jack Smith never indicted any of the eight people variously treated as co-conspirators: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark (who was removed in the superseding indictment pursuant to SCOTUS’ immunity ruling), Ken Chesebro, Boris Ephsteyn, and — treated as co-conspirators in the immunity brief but not the superseding indictment — Steve Bannon and Mike Roman. It might be as simple as a decision, given the course of the Mueller investigation, to ensure that Trump couldn’t pardon these co-conspirators before charging any of them.

But prosecutors might also explain why Bannon and Roman only belatedly got included as co-conspirators. I have speculated that it may have to do with delays in exploiting the phones of Roman and Epshteyn. If that’s true in the case of Ephsteyn, those delays would likely have arisen from post-hoc privilege claims tied to Epshteyn’s claim to be Trump’s lawyer. And if that is true, it would mean Trump’s nominee for Deputy Attorney General, Todd Blanche, was the one who fought for the delay.

In any case, any discussion of Trump’s co-conspirators may prove useful to the extent that state prosecutors are able to sustain their cases against the co-conspirators.

Finally, though, there is perhaps the most important declination decision: the decision — after Congress impeached Trump and the January 6 Committee referred for prosecution — not to charge 18 USC 2383, inciting insurrection, the single charge that (per SCOTUS’ decision in the Colorado case) could have disqualified Trump from the Presidency under the Fourteenth Amendment. The reasoning here might be fairly prosaic: Perhaps Smith feared precisely the immunity challenge, tied to impeachment acquittal, that Trump launched anyway. Perhaps Smith was not able to substantiate that case until he received evidence and testimony that post-dated the delay John Roberts caused, and so could charge insurrection now, but could not have done so in August 2023, when he first indicted Trump.

If Smith were to explain why he declined that charge, however, he would — as Robert Hur did in his 388-declination report — describe the evidence that would have supported such a charge.

NYT suggests Smith’s report will be short; again, it’s not clear whether that reflects information received on background, or just speculation. Smith has had an eternity to consider the possibility Trump would be elected, and he managed to write up the 165-page immunity brief in the same three weeks he gave himself in asking for an extension until December 2.

Even assuming we’ve already seen the evidence Smith has — Smith’s decision to exclude mention of the Proud Boys and Trump’s January 6 fundraising from the immunity brief suggests there may be stuff we have not seen — the declination decisions, themselves, may provide important answers to questions about whether it ever was possible to disqualify Trump from becoming president again.

And it’s a marker in the sand. The report presumably will, at least, lay out some of the consequences of what John Roberts has wreaked. Republicans won’t care. But that lays out what they own going forward.

On October 20, Peter Baker wrote a rare comprehensive story on Trump’s alleged and convicted crimes.

His businesses went bankrupt repeatedly and multiple others failed. He was taken to court for stiffing his vendors, stiffing his bankers and even stiffing his own family. He avoided the draft during the Vietnam War and avoided paying any income taxes for years. He was forced to shell out tens of millions of dollars to students who accused him of scamming them, found liable for wide-scale business fraud and had his real estate firm convicted in criminal court of tax crimes.

He has boasted of grabbing women by their private parts, been reported to have cheated on all three of his wives and been accused of sexual misconduct by more than two dozen women, including one whose account was validated by a jury that found him liable for sexual abuse after a civil trial.

He is the only president in American history impeached twice for high crimes and misdemeanors, the only president ever indicted on criminal charges and the only president to be convicted of a felony (34, in fact). He used the authority of his office to punish his adversaries and tried to hold onto power on the basis of a brazen lie.

Mr. Trump beat some of the investigations and lawsuits against him and some proved unfounded, but the sheer volume is remarkable.

The story was remarkable expecially by Baker’s terms — he has a history of pulling his punches with Presidents.

When Baker wrote a piece on Trump’s picks of Matt Gaetz, Pete Hegseth, and Tulsi Gabbard less than a month later, Baker dropped the focus on how meritorious were the investigations into Trump — instead letting Steve Bannon claim, without correction, that the “Deep State” set out to break Trump.

If confirmed, Mr. Gaetz, Mr. Hegseth and Ms. Gabbard would constitute the lead shock troops in Mr. Trump’s self-declared war on what he calls the “deep state.” All three have echoed his conviction that government is seeded with career public servants who actively thwarted his priorities while he was in office and targeted him after he left. None of them has the kind of experience relevant to these jobs comparable to predecessors of either party, but they can all be expected to take “a blowtorch” to the status quo, to use Stephen K. Bannon’s term for Mr. Gaetz.

“You tried to destroy Trump; you tried to imprison Trump; you tried to break Trump,” Mr. Bannon, a onetime White House strategist for Mr. Trump, said on his podcast on Wednesday after Mr. Gaetz’s nomination was announced. “He’s not breakable. You couldn’t destroy him. And now he has turned on you.”

To be sure, it’s common for journalists, including Baker, to let Trump air his claims of grievance without correction. It was just striking to see Baker do so so soon after writing that rare comprehensive review of Trump’s alleged and convicted crimes.

In between those two stories, CJR reports, an attorney for Trump wrote a letter to the NYT threatening a $10B lawsuit for the Baker story and three others.

The letter, addressed to lawyers at the New York Times and Penguin Random House, arrived a week before the election. Attached was a discursive ten-page legal threat from an attorney for Donald Trump that demanded $10 billion in damages over “false and defamatory statements” contained in articles by Peter Baker, Michael S. Schmidt, Susanne Craig, and Russ Buettner.

It singles out two stories coauthored by Buettner and Craig that related to their book on Trump and his financial dealings, Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success, released on September 17. It also highlighted an October 20 story headlined “For Trump, a Lifetime of Scandals Heads Toward a Moment of Judgment” by Baker and an October 22 piece by Schmidt, “As Election Nears, Kelly Warns Trump Would Rule Like a Dictator.”

“There was a time, long ago, when the New York Times was considered the ‘newspaper of record,’” the letter, a copy of which was reviewed by CJR, reads. “Those halcyon days have passed.” It accuses the Times of being “a full-throated mouthpiece of the Democratic Party” that employs “industrial-scale libel against political opponents.”

The other stories include Mike Schmidt’s interview — backed by recordings!! — of John Kelly, in which Trump’s former Chief of Staff warned that he would rule as a fascist. It’s not clear about which stories from Russ Buettner and Susanne Craig Trump complained (CJR did not include the letter or NYT’s response). But they teamed up to write a damaging piece about how The Apprentice gave Trump the false appearance of success; they’ve got more dated work in which they showed how Trump made little from the inheritance he got from his father.

Whichever Buettner/Craig stories they are, now is probably a good time either to get a copy of their book, Lucky Loser, yourself, or to create demand for it at your local public library!

Unlike the frivolous complaints against CBS (for editing a transcript of Kamala Harris’ 60 Minutes interview less extensively than Fox edited the transcript of Trump’s women’s town hall) or WaPo (for reporting positively on Harris), Trump does not appear to have followed up on his threat to sue the NYT. Those other lawsuits, I suspect, were part of an effort to claim the election was unfair, in the same way Trump has wailed that he lost the 2020 election because voters were not permitted to look at Hunter Biden’s dick pics before the election.

But the letter to NYT appears, so far, to be no more than a warning shot: that he will come after them if they do accurate reporting describing that Trump is not the guy he sold himself as.

That’s telling, though. Trump has telegraphed that he believes accurate reporting debunking his con is dangerous enough he would be willing to take on the NYT about it.

Crazy, I know. But what if simply reporting the truth about Trump’s con is what he most fears? And that is where he’ll focus his authoritarian gaze first.

The comments on Marcy’s post yesterday telling folks to go stare at the ocean to get their heads in a better place, instead of becoming paralyzed and stuck in the face of last weeks election, make it clear that she struck a nerve with how folks are feeling 10 days after the election. I’ve had a bunch of face-to-face conversations with friends and parishioners on both sides of the Missouri/Kansas state line, encouraging much the same kind of self-care. But once your head is clear, then what?

Why, then it’s time for some good troublemaking, and if you want to know about making good trouble while at a serious political disadvantage, let me tell you a couple of stories from ruby red Missouri and her not-quite-so-ruby-red sister Kansas.

Back in 2019, the Kansas Supreme Court ruled that the state constitution’s declaration of fundamental rights includes the rights of women to control their own bodies, including the right to an abortion:

We conclude that, through the language in section 1, the state’s founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.

Included in that limited category is the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental. Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

Predictably, the GOP’s evangelical right wing in Kansas went nuts. After whining about the state Supremes, they got to work to overturn this opinion by a constitutional amendment. They wrote their amendment very carefully, got all the necessary signatures, and made the political decision to put it on the August 2022 primary election ballot. That choice presumed that this would make it easier to pass, as primary elections tend to draw only the hard-core voters, which they thought would work in their favor.

To borrow a phrase, they chose poorly.

While everyone was preparing for that election, SCOTUS handed down the Dobbs opinion. The wingnuts cheered, and progressives wailed. But the progressives in Kansas did more than whine and whinge.

Young people, particularly young women in Lawrence (U of KS), Manhattan (K State), Wichita (Wichita St), and the KC suburbs of metro KC got to work. First, they recruited other young people, registered them in huge numbers, and got them fired up enough to get their friends to register and then fired up enough to actually turn out to vote. Second, and at least as important, the local KS folks driving the resistance convinced all the usual national groups that the language to use to fight this battle was not the language of women’s rights, but the language of choice in health care decision-making. “Do you really want bureaucrats in Topeka getting between you and your doctor?”

That language resonated, because the local folks knew their neighbors and the national folks trusted the local activists. I had countless conversations with longtime Kansas republicans, quoting it back to me approvingly as they told me of their decision to vote no and defeat the amendment. And the result wasn’t even close – the amendment went down by roughly 60-40 margins. The local reaction was amazing:

“You guys, we did it,” said Rachel Sweet, campaign manager for Kansans for Constitutional Freedom, as she addressed a crowd of abortion-rights supporters at a watch party in Overland Park. “We blocked this amendment. Can you believe it?”

[snip]

Voters showed up in unforeseen numbers in urban areas of the state, while rural areas underperformed compared with turnout in the presidential race two years ago.“From the moment lawmakers put this on a primary ballot, we knew this was going to be an uphill battle, but we did not despair,” Sweet said. “We put in the work and these numbers speak for themself.”

Dawn Rattan, who attended the watch party in Overland Park, said the defeat of the amendment shows that reproductive health care is an issue that crosses party lines, “and people everywhere want women to have a choice.” She was moved to tears when the result was announced.

“I was so scared,” Rattan said. “I was so worried that it was going to be really close, and this is just so decisive, it’s not even close.

The activists in Kansas were as angry as anyone else about Dobbs, and they didn’t let feelings of impotence about the Supreme Court paralyze them and keep them from working on the local level. Instead of crying about places where they couldn’t make a difference, they found a place where they *could* make a difference. And then they worked their butts off to make their state a marginally safer place to be a woman of reproductive age.

Another story, from across the state line . . .

As COVID was raging in Missouri, Eric Schmitt — then the MO Attorney General — had a rather unique approach to his job. He had his eye on the 2022 Senate race where he would be up against a couple of well-funded primary opponents, and he was at a distinct financial disadvantage. In early 2021, he realized that every time he announced that his office intended to sue someone over a mask mandate or other COVID health regulation, his campaign fundraising went up. A lot. He didn’t even have to actually file the lawsuits, though he did file some. The key thing is that just making the announcement on Twitter brought in contributions by the truckload. So he went all in on these announcements and lawsuits, surprising a number of his former colleagues in the state legislature. A friend with connections in Jefferson City shared a couple of conversations with Republican legislators who said some version of “Sure, he’s always been conservative, but always a quiet, get-the-job-done kind of guy. I never would have guessed he’d be threatening lawsuits like this.” But it worked, and his poll numbers began to rise.

In late 2021, Schmitt made a big deal about twisting a case in St. Louis county involving the state’s Department of Health and Senior Services into a precedent giving him the power to prohibit schools from enforcing any mask mandates. He sent cease and desist letters to school districts with such mandates, threatening a lawsuit if they did not rescind their policies. Some did just that, but others did not, including the Lee’s Summit Reorganized District #7 in the KC suburbs. Instead, the lawyer for the LSR7 district responded to Schmitt’s letter with one of his own, announcing their intention to file a countersuit, filing a huge shot across Schmitt’s bow.

The letter is a real gem, gutting Schmitt’s claims on numerous grounds. Most damning, from my point of view, was this from the end:

We don’t need to rely on just these general statutes to demonstrate the Attorney General’s lack of authority in this matter. Consider what the Legislature has authorized school districts to do in the face of a pandemic. Under RSMo. § 167.191:

It is unlawful for any child to attend any of the public schools of this state while afflicted with any contagious or infectious disease, or while liable to transmit such disease after having been exposed to it. For the purpose of determining the diseased condition, or the liability of transmitting the disease, the teacher or board of directors may require any child to be examined by a physician, and exclude the child from school so long as there is any liability of such disease being transmitted by the pupil.

This law speaks for itself. Not only may a school district exclude from school a child who has COVID; it may exclude from school a child who has been exposed to COVID and who is liable to transmit it pending a medical test or examination to confirm that the child is not afflicted with the disease.

In short, the duly elected Lee’s Summit R-7 Board of Education will not abandon its statutory duty to govern the operations of the school district. If you follow through on your threat to sue the District, we will defend that suit vigorously, and pursue all remedies available to the District resulting from any suit that violates Missouri Supreme Court Rule 55.03, which requires among other things that any claim “is not presented or maintained for any improper purpose” and that the claim “is warranted by existing law.”

As strongly worded as this letter is, I have a hunch that the first draft of the letter was much, much stronger.

Realizing he would lose, Schmitt then dropped his suit and asked that the district do the same. The district refused, saying they wanted to pursue the case so that a firm line would be drawn to prohibit any future attempts by Schmitt or a future AG to illegally try to usurp power granted to the schools over some other issue. By the time that suit was heard, Schmitt was gone and the new AG — Andrew Bailey (lately in the news as being on Trump’s shortlist to be nominated to be the US Attorney General) — had taken office. The ruling was not just in the school’s favor, but exactly the kind of smack-down the district lawyer predicted. From the KC Star:

Judge Marco Roldan, in his 18-page ruling, found that Schmitt, a Republican who was elected to the U.S. Senate last year after four years as state attorney general, did not follow Missouri law when he ordered the Lee’s Summit School District to stop enforcing its COVID-19 mitigation efforts in 2021.

“There exists no Missouri law allowing the Attorney General to involve himself in a School District’s efforts to manage COVID-19 or other disease within its schools,” Roldan wrote in his ruling. The ruling offers a scathing rebuke of Schmitt, who had sued Lee’s Summit and dozens of other school districts at the height of the pandemic.

Schmitt regularly touted the suits on social media and used them to elevate himself in his Senate campaign.

“Parents and students followed the Attorney General’s lead, leading to even greater confusion than the pandemic had already caused,” Roldan wrote.

What matters most, here, is not “the courts solved this” but the fact that this school district — in a relatively evenly divided blue/red community — chose to stand up for themselves and their community. Of the 47 districts to receive Schmitt’s cease and desist letter, this was the only district to push back and get it on the record that the AG was way out of bounds trying to dictate to schools how they are to protect the health of students, teachers, and other staff.

In Missouri, we’ve spent years coming to grips with Trumpist nonsense at the state level where the GOP has held supermajorities in both houses of the legislature as well as a firm grip on executive branch offices. Folks in KC and St. Louis have been fighting the wingnuts in various ways, including exploiting differences between conservative GOP legislators and their over-the-top MAGA colleagues. The Dems in the legislature have been very good at offering selective support to the conservatives in order to outflank the MAGA extremists. Some of the things enacted have not been great, but they forestalled much much worse stuff. They have also been very good at using the courts — even with conservative judges — to stop the “But I won and I want to . . .” whinging from the MAGA folks.

[If you are a regular reader of Emptywheel, the mention of the Lee’s Summit School District might ring a faint bell. “Where have I heard that before? Oh, yes, now I remember . . . “]

In both Kansas and Missouri, local activists have been fighting MAGA on the local level for at least 4 years. Progressives in both states had hoped that things would be improving with a Harris victory, but absent that we are well acquainted with how to fight back, and how to win. Did you hear that Missouri just overturned the harshest state abortion law by putting reproductive rights in the state constitution — on the same night that Trump was voted back into the White House?

It can be done. I wish it wasn’t necessary, but last week’s election made it clear that the good troublemaking must go on.

It can be done. It can be done. It can be done. Lather, rinse, repeat.

Young folks and old folks, office holders and informed ordinary citizens, folks of privilege and folks from the margins . . . making good trouble is work for us all.  And if any other red state folks here have stories to share, please do. We are strengthened by hearing of victories, and we can learn from each other about how to push back in our neighborhoods.

Politico had a detail about the Matt Gaetz selection that I’ve seen no one else pick up.

It was Boris Epshteyn’s idea.

How did we get here? That story is still coming out, but here’s what we know. As of Monday, Gaetz was not on the short list to be Trump’s choice for attorney general. But Trump wasn’t satisfied with those options, our Meridith McGraw tells Playbook.

[snip]

The Gaetz-for-AG plan came together yesterday, just hours before it was announced, Meridith tells us. It was hatched aboard Trump’s airplane en route to Washington, on which Gaetz was a passenger. A Trump official revealed more details to Playbook late last night: BORIS EPSHTEYN played a central role in the development, lobbying Trump to choose Gaetz while incoming White House chief of staff SUSIE WILES was in a different, adjacent room on the plane, apparently unaware.

Maggie and Swan have retconned that detail to describe, only, that Boris, Elon, and Susie Wiles were all on the plane, then fluffed it all into bullshit about clarity of what he wants.

Boris’ role in Trump’s apparent plan to destroy the country has gotten little notice amid the parlor games focused on when the two narcissists, Elon and Trump, will tear each other down. But his apparent role in this decision bears more notice.

After all, he’s unindicted co-conspirator 6 in the January 6 indictment. He had a central (though uncharged) role in the documents case, orchestrating parts of the plan to have Evan Corcoran do the search but have Christina Bobb do the certification. And he was or may still be under investigation, with Steve Bannon, for a cryptocurrency scheme that cheated Trump’s rubes.

His communications with now Chief of Staff designate Susie Wiles appear to have been a subject of interest for investigators — a subject tied to what a witness that is likely Eric Herschmann described as an effort to cover his own past legal exposure with a retroactive claim to have been acting as an attorney.

And the potentially belated access to the contents of his phone are what expanded the focus of the immunity brief to incorporate Bannon as an unindicted co-conspirator and Bannon’s prediction that “All Hell will break loose” part of the plot.

Donald Trump was considering actual lawyers for the role of Attorney General, but (per Marc Caputo) didn’t like them because they talked Constitution and all that.

“Everyone else looked at AG as if they were applying for a judicial appointment. They talked about their vaunted legal theories and constitutional bullshit. Gaetz was the only one who said, ‘Yeah, I’ll go over there and start cuttin’ fuckin’ heads.’”

And then, at least according to Politico, Wiles left the room and Boris convinced Trump to pick Gaetz.

After that, Trump has announced plans to install his defense team — Todd Blanche, Emil Bove, and John Sauer — as Deputy Attorney General, PADAG, and Solicitor General, respectively (note: PADAG is not a confirmed position, so Trump only announced it to make the intent crystal clear).

Now, Bove and Sauer are at least competent to the positions Trump will install them in. All three men know their way around DOJ. Blanche is less horrible than the Gaetz pick — again, if you ignore the symbolism of converting the Department of Justice into the defense firm for the President.

And he’s also Boris’ defense attorney. He was Boris’ defense attorney and then, possibly at Boris’ suggestion, added Trump as a client, creating some challenges regarding discovery.

According to Politico, a key player in Trump’s assault on the Constitution, on the Capitol, is the guy who picked Matt Gaetz to be Attorney General (or who suggested Matt Gaetz be proposed for Attorney General, creating an impossible loyalty test for the Senate).

And the competent people reporting to Gaetz are there to mount a defense.

If you follow me on Bluesky (which has really taken off, thanks to the fascists, so consider signing up if you haven’t already), you’ll know that I have been at the ocean in County Clare.

I am staring at the ocean.

If there’s one thing I recommend to you right now, is to take some time, however long you can, to go stare at the ocean. Or the sky. Or a meadow or mountain or river. Or even a swarming city street.

Go stare at something and just stare.

Oh, and also, breathe. If you need to, do something that will help you breathe: yoga, walking, swimming, singing, playing the tuba.

And after you’ve stared for a while, sit down and think about how you’re going to pick yourself back up again. I’m not asking you to pick yourself back up again.

Yet.

Just asking you to make a plan about how you’ll do so.

As Nicholas Grossman explained, authoritarians want you to quit. Figure out how you’ll defy them.

My plan, for example, includes something several other people’s plans do, too: A change in my media diet. I was always planning to change the way I used Xitter after the election; I was deliberately swimming in the toxicity of the site. I may explain why one of these days. But everything — Musk’s juncture with the government, the change in Terms of Service that go into effect tomorrow, the insanity — demand clearer limits on its use, at least for me. I’m also imposing (attempting to self-impose) a budget on my social media time, just like mothers give their children screen time limits. So far, out here by the ocean, I’ve mostly succeeded, though the post-Matt Gaetz insomnia made it tough.

I’ve got a stack of reading that will fill the time — a stack of reading that will help me think about what we can do to fight this. So far, this week, I’ve finished How to Win an Information War, and started Opus, along with a reading list on Viktor Orbán. I’ve been wondering if folks would like to do a periodical book discussion around here?

Trump succeeds when he hijacks attention and rationality. I know that and yet have also succumbed, even while I was trying to persuade others not to be distracted. Figure out what parts of your media diet make you easy to distract. And purge them, to the extent you’re able.

And while you’re changing your media diet, make sure you invest in the outlets that are providing important content, because they’re likely to face new obstacles and even new opportunities. Such as The Onion, buying InfoWars!

I’m also going to try to change the emotions with which I approach this fight. I’m not sure I’m ready to explain that yet — let me go stare at the ocean some more before I try.

But I need to — I think we all need to — target our outrage. There’s plenty to be angry at top Democrats, at each other, for. With some exceptions (like Gaza), most of those things are less important than the reasons to be angry at the fascists.

Make sure you limit your rage and focus it where it belongs. Or better yet, channel that energy.

Something else to consider: first, make a list of those personal habits or new hobbies you’ve been meaning to adopt and lay out some steps to get there. Make sure you have something else to sustain you, for when you can’t stare at the ocean. Do something so often — this week, for me, it is yoga — that makes you feel noticeably stronger. Replace some of the time you’ve been fighting with self care.

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

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

Go stare at the ocean.

Go take the time. Prepare to pick yourself back up again.

Since Jack Smith conveyed that he was going to shut down, I’ve been pondering how to improve Democratic messaging enough such that when Smith issues his report, it would make clear to Republicans, especially Mitch McConnell (and now John Thune, his chosen successor who was chosen today), they would own Trump’s crimes going forward. Similarly, I’ve been trying to anticipate how to convey the sheer outrage of the pardons Trump will issue when he becomes President.

I didn’t and don’t have great expectations that Democrats will be up to the task.

But then, after appointing a Fox TV pundit to run the largest military in the world, Trump picked Tulsi Gabbard to run the biggest intelligence operation, and then picked Matt Gaetz to run DOJ.

Thus far I’ve heard just a few Republicans (Lindsey Graham, Tommy Tuberville, Anna Paulina Luna), in either chamber, suggest Gaetz should be confirmed. Everyone else, especially Senators, are saying, welp, let’s have a thorough confirmation process. Some are nodding towards the clearance process they still imagine Trump would adhere to. Elsewhere, Ed Whelan is spreading rumors that Trump simply intends to recess Congress and appoint his cabinet that way.

It’s a frenzy. And it’s a frenzy led by Republicans — though Democrats are definitely joining the fun. A frenzy that has already led to a flood of new details about Gaetz’ debauchery.

If Gaetz gets this job via some means, it’ll be horrible. But it would probably be less horrible than if Mark Paoletta got the job, because Paoletta is highly competent, bureaucratically and legally, and personally close to Clarence Thomas and Sammy Alito. If you’re going to have a guy trying to thoroughly weaponize DOJ, I’d much rather have the guy who’ll piss off judges and natural Trump allies in the process.

Now, maybe this will burn through quickly and Trump will replace Gaetz with Paoletta. But if not, Gaetz serves as a ready symbol whom most Republicans loathe of all the same fitness problems that Trump has, of the same reasons why rule of law matters.

Trump is sprinting to bring the US down — and his nominations, and the means he might take to install his nominees, make that more clear.

Yes. It’s horrible. Everything is horrible. But this Gaetz nomination (along with the other two) may finally convince people that Trump really is the menace to America that Democrats and never-Trumpers have been warning he was. There may be no better person than Gaetz to convince the Republicans who hate him how poor Trump’s judgment is.

Update: After reporting that the Ethics Committee was going to vote on Friday to release their report on Gaetz (which is one of two reasons he quit), Dick Durbin called on the committee to preserve and share the report. John Cornyn also said he’d like to review it.

In this post, I posited a way of understanding the election. Where Kamala Harris and down ballot Democrats engaged in traditional politics, it worked (as exhibited by Harris’ better performance in swing states and the retention of at least four of the swing state Senate seats, among other things). But propaganda worked far better across the board (exhibited, in part, by the large numbers of disaffected voters who supported Trump because they believed false claims about his policies or were mobilized by propaganda campaigns stoking fear).

Since I wrote the post, the election results have actually gotten a lot closer. Trump won by a lower percentage of the popular vote than Joe Biden did (and only just cracked 50% of the vote), and like Biden, won by narrow margins in the states that mattered.

If I’m right about that dynamic — that politics worked but propaganda worked far better — then it means much of the post-election soul-searching is misplaced (and, indeed, a dangerous misallocation of focus). That’s because Harris lost, in part, because of media disfunction, because electoral choice became dissociated from political persuasion more than any recent US election, largely due to an assault on the press and rational thought.

All this builds on Fox News and other institutions of right wing propaganda — though, partly because of the Dominion judgment and partly because Pete Buttigieg had started to crack through that facade, that’s an area where Dems did important work.

It builds on the hollowing out of the traditional press that has been happened for years, as corporate raiders turn news into a profit center. Several things made that worse, this year. As WSJ reported the other day, social media referrals to legacy newspapers cratered last year.

This was a deliberate choice by gatekeepers to dramatically alter their function, from a referral service to a disinformation swamp. But it had an immediate affect on the readership of those legacy outlets and other services relying on them, effectively neutering their power. (One reason I recommend Bluesky over other Xitter alternatives is because Bluesky encourages outlinks.)

At the same time, the oligarchs who own those papers shifted their priorities in ways that would have more subtle impact on the coverage. WSJ, which has flourished in spite of the media environment, nevertheless fired a bunch of journalists in spring, targeting local news and, anecdotally, a certain profile of journalist. Jeff Bezos taunted WaPo’s reporters with their declining influence when he brought in Will Lewis, a Murdoch retread with a history of protecting the boss, and Will Lewis reveled in the kind of ethically problematic both sides journalism that chases manufactured scandals as much as GOP crime. Bezos taunted his journalists again when he declined to endorse Kamala Harris, only to issue a simpering congratulations once Trump won.

There’s still a lot to unpack about the turn of the oligarchs (I’ve left out their embrace of AI because I hope even they will soon have to concede that AI hasn’t replaced human workers but it has enshittified their product). But when a number of these things all happened in spring, I remember wondering whether all the oligarch owners had gotten together in a room and decided to make their product worse in an election year, all in the name of chasing different kinds of influence.

Partly, they’re trying to compete with podcasts. And while there’s a lot to be said for the authenticity of podcasts, it’s another industry driven by algorithms, and some of the key platforms cater to far right politics.

Before we turn to Musk, consider that Trump used manufactured grievances — including the goddamned Hunter Biden hard drive!! — from 2020 to bully Mark Zuckerberg in advance of the election. It’s unclear to what degree Zuckerberg’s efforts to depoliticize Meta stem from fear, from a desire for another tax cut, or from a genuine solidarity with his oligarch brothers. Whatever the motive, Threads was built not to replicate what Twitter used to be, yet it continues to be the destination for journalists exercising no critical thinking of what they need from a new social media platform. And Meta sold at least a million dollars in ad spending that violated Meta guidelines. Something led Zuckerberg to reverse his prior support for democracy, and it had a significant effect on the election.

Ah, Elon Musk. Perhaps his original motivation for buying Xitter was simply the imagined moral injury his ego suffered when Grimes ditched him to (briefly) date Chelsea Manning and his daughter, Vivian Jenna Wilson, transitioned (since the election, Wilson has announced she’s leaving the US for a country more welcoming to trans people). But the plan definitely took shape in the aftermath of January 6. It appears to have taken shape with the kibbitzing of Stephen Miller.

Musk — aided by David Sacks — played a key role in the kind of operation we see in the Viktor Orbán regime, but which happened in order to install Trump for a second term. By giving Substackers who were willing to misrepresent primary documents access to Xitter’s documents, Musk created a false narrative about moderation, pitching voluntary efforts to protect democracy as instead efforts to censor far right speech. That, in turn, gave demagogues in Congress the opportunity to create the appearance of substantiating that narrative with an investigation into the people who formerly moderated social media. This investigation resulted in legal costs and death threats to those involved — but only easily debunked propaganda reports that melt under the least scrutiny.

Nevertheless, those investigations have an enormous chilling effect. Paired with lawsuits against entities like the Stanford Internet Observatory, they disrupted most of the infrastructure attempting to limit disinformation on social media.

When Congressmen like Jordan and James Comer investigate, they aren’t bound by mere facts. They invent wildly. But with the help of process-oriented Congressional beat journalists, they still manage to tell their tales anyway. Such journalists report what Jordan and Comer said and who they’ve subpoenaed with almost no scrutiny of whether any of it makes sense. Those beat journalists are getting played.

This is precisely the kind of persecution of civil society at which Viktor Orbán has excelled. Many people are just beginning to think of what will come, but (as Renee DiResta, one of the targets of Jim Jordan’s wrath, keeps noting on Bluesky), what will come already started, years ago, and accelerated two years ago in earnest.

The election result significantly built on these prior Orbanization efforts. Certainly, Xitter became the cesspool of disinformation that researchers formerly combatted. Musk favored pro-Trump speech and seems to have throttled others (though some of Musk’s Terms of Service and API changes make it far harder to quantify). That favored speech includes his own, from the day he endorsed Trump.

And it wasn’t just the assault on moderation. Congress also targeted state and local prosecutors, the professionalization of the FBI, FTC Commissioner Lina Khan, any pushback on Elon Musk, and even government efforts to protect against Russian influence operations. The lawsuits against media outlets — even the embarrassingly frivolous ones launched by Devin Nunes, and the efforts to co-opt oligarch owners, also played a role. The Hunter Biden witch hunt, with its mythical foundation in the laptop that is not a laptop, its projections of corruption, the constant narrative it fed right wing propaganda (drowning out even Ron DeSantis’ bid to challenge Trump), was undoubtedly a big part of Joe Biden’s terrible approval ratings, and it is precisely what we’ll see all the time going forward.

We can’t assess the election without assessing the degree to which such efforts impacted the race. We sure as hell can’t discuss how to win the next election without thinking of how Republicans will work to further neuter liberal and nonpartisan civil society that protects democracy. Some of the biggest supporters for Kamala Harris will spend the next four years fighting to protect their professional lives and, in some cases, even their freedom.

The same disinformation researchers who’ve been evicted from safe university posts did their job in at least documenting what happened and in real time the press tracked what they were seeing (and what dedicated journalists found themselves). Next time, however, both the disinformation researchers and the press will be under more sustained assault (or, via their oligarch owners, cooptation), both via targeting their funding and creating more scapegoats to chill such work.

So if you want to think about the next election — if you’re optimistic enough to assume there will be a next election — you have to factor in the assault on civil society that has already started and will ratchet up in the next few years.

Yesterday, Donald Trump picked a Fox News pundit, Pete Hegseth, to lead the largest military in the world.

Before I discuss that, note that Kaitlan Collins described that Trump has yet to pick an Attorney General nominee, candidates for which include people like Matt Whittaker, Senator Mike Lee, and Mark Paoletta. According to Collins, that’s because none of the candidates checks all the boxes for Trump. Paoletta already issued a manifesto about forcing the career employees to bend to Trump’s will, and yet he apparently is missing something for which Trump is looking.

That may be how Trump skipped over people like former Acting Secretary of Defense Chris Miller, longtime Trump national security aide Keith Kellogg, and Representative Mike Rogers, who were considered candidates. And tellingly, we know that Miller was willing to check the litmus test in place when he was picked in 2020: a willingness to invoke the Insurrection Act.

There’s something else that Hegseth is happy to do that the others are not. The possible choices are gutting the military of women, people of color, LGBTQ soldiers, launching nuclear first strikes, committing war crimes, and treating leftists as terrorists — all are things he has espoused before.

Today, Senate Republicans will vote for Majority Leader. I expect John Thune and John Cornyn will split the non-crazy vote and give the race to Rick Scott. But the race will presume Trump’s demand to allow Trump to install these candidates via recess appointment.

A Hegseth appointment is precisely the kind of pick that would test the Senate’s willingness to provide some kind of pushback to Trump. But if all three aspiring Majority Leaders have already given away advice and consent, that won’t happen.