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Here’s what the NYT digital front page looks like for me this morning.

It features Kamala Harris’ rather unremarkable interview with CNN (part one, part two, part three) as prominently as CNN itself (other political outlets are more focused on an upcoming Brian Kemp decision on how Georgia’s election will be run, Trump’s attempt to flip-flop on abortion, and yet another attempt from Trump to delay his sentence in his New York case).

Whatever.

After demanding it for a month, I get that some outlets need to claim this interview was more useful than it was.

But the remarkable thing about NYT’s focus on it is they’ve written two stories substantially about the same thing: The NYT’s own month-long campaign to drive Joe Biden from the race.

Yet in adopting that focus, Reid Epstein and Michael Shear ignored the logic that their own outlet adopted for such an unrelenting push to oust Biden, and in the process, covered up the threat Trump poses to democracy.

Of the seven things Epstein took away from the interview, the first was an overstatement of the degree to which Kamala was “hugging” Biden’s legacy versus the degree to which (for example, on fracking) she will make concessions if it achieves an overall policy goal.

Nevertheless, Epstein is right that Harris was better able to explain the success of Biden’s policies, one of two reasons I was pretty sure, from the start, swapping Harris for Biden would be an improvement, justifying the swap.

As it turns out, Ms. Harris is a better salesperson for Mr. Biden’s accomplishments and defender of his record than he ever was. Perhaps that’s little surprise, given the president’s diminished political skills and trouble speaking coherently in recent years.

Having thus maligned Biden, Epstein then claimed that Harris wants to turn the page on both Biden and Trump. He focused on Harris’ depiction of her opponent not by name, but time period — the last decade — and quipped (I’m sure Epstein thinks this is clever!) that Biden has been prominent over the last decade and a half (treating the two years between when Biden reacted strongly to Charlottesville and the time he actually announced as part of his candidacy).

… but wants to turn the page on him as well as Trump.

What Ms. Harris did do was offer herself up as a continuation of Mr. Biden’s leadership even as she distanced herself from him.

Asked by Ms. Bash if she had any regrets about defending Mr. Biden’s fitness for office and ability to serve a second term, Ms. Harris said she did not and praised the president.

Then, in the next breath, she deftly put both him and Mr. Trump in the rearview mirror.

“I am so proud to have served as vice president to Joe Biden,” she said. “I’m so proud to be running with Tim Walz for president of the United States and to bring America what I believe the American people deserve, which is a new way forward, and turn the page on the last decade of what I believe has been contrary to where the spirit of our country really lies.”

Mr. Biden, of course, has been either president, vice president or a leading candidate for president for most of the last 15 years.

Then Epstein returned to it in his commendation for the boring interview, suggesting that Bash didn’t demean Biden as much as Epstein — or rather, “Republican critics” — want.

Republican critics of Ms. Harris may have wished for a harsher grilling — or for more direct questions about how she felt about Mr. Biden’s aptitude and acuity — but Ms. Bash pressed the vice president when necessary.

Shear did something similar.

His entire post focused on how Kamala answered Dana Bash’s question (three minutes into the third part) of whether the Vice President regretted supporting Biden until he dropped out.

Vice President Kamala Harris said on Thursday that she did not regret defending President Biden against claims that he had declined mentally, saying that she believes he has the “intelligence, the commitment and the judgment and disposition” Americans expect from their president.

“No, not at all. Not at all,” the vice president said when asked if she regretted saying Mr. Biden was “extraordinarily strong” in the moments following the disastrous debate in June that led him to abandon his bid for re-election a month later.

Shear did not, as Epstein did, feign confusion about what Harris meant when she adopted that “last decade” moniker. He explained — perhaps for Epstein’s benefit? — that it was a reference to Trump.

Instead, he misrepresented what she was doing with Biden, temporally, claiming that “she talked about Mr. Biden mostly in the past tense[,] with a kind of nostalgia.”

But she talked about Mr. Biden mostly in the past tense — fondly, but with a kind of nostalgia that made it clear that he no longer represents the future of the country that she hopes to be leading in January.

[snip]

“History is going to show,” she said, “not only has Joe Biden led an administration that has achieved those extraordinary successes, but the character of the man is one that he has been in his life and career, including as a president, quite selfless and puts the American people first.”

Her reminiscing about Mr. Biden’s place in history — she said it was “one of the greatest honors of my career” to serve with him — came just after she said she was determined to “turn the page” on a decade of American politics that has not been good for the country.

“Of course, the last three and a half years has been part of your administration,” Ms. Bash reminded the vice president.

Ms. Harris said she was talking about “an era that started about a decade ago,” an apparent reference to the beginning of former President Donald J. Trump’s first campaign for the White House in 2015. She said the era represented a “warped” idea that “the strength of a leader is based on who you beat down.”

That was clearly directed at Mr. Trump, and she suggested that the warped era would continue if he returned to the White House next year. [my emphasis]

Now, in point of fact, both men misrepresented how the Vice President used that “decade” moniker. She actually used it twice. Once, the instance they focused on, in the last third of the interview, which I’ll get to.

But she also used it in response to Bash’s very first question, the dumb “what would you do on Day One” question that TV pundits love.

I think sadly, in the last decade, we have had in the former president someone who has really been pushing an agenda and an environment that is about diminishing the character and strength of who we are as Americans, really, and I think people are ready to turn the page on that. [My emphasis; after this, Bash snapped back, repeating the, “what would you do on Day One” question.]

That is, Harris defined what she meant by “the last decade” in what was probably her fifth sentence in the interview (possibly even fourth — the woman may use longer sentences than me!), after introducing a focus on the middle class and a return to hope. From her very first response, Harris tied the way Trump (whom she never named) has diminished America to some kind of effect it might have on the middle class.

And the questions that followed that one were focused on policy, which Harris always addressed, whether in the present tense or past, in her role as Vice President. “Well first of all, we had to recover, as an economy,” Harris explained why she (and Biden) had not implemented further steps she’d like to take to help the middle class. “That’s good work,” Kamala boasted, after listing a bunch of Biden’s economic accomplishments. “There’s more to do, but that’s good work.”

In fact, Kamala’s answer to the question NYT dedicated much of two columns on, whether she regretted defending President Biden after he bombed the debate, was in the present tense.

Harris: I have served with President Biden for almost four years now and I’ll tell you it’s one of the greatest honors of my career. Truly. He cares so deeply about the American people. He is so smart and loyal to the American people. And I have spent hours and hours with him, be it in the Oval Office or the Situation Room. He has the intelligence, the commitment, and the judgment, and disposition that I think the American people rightly deserve in their President. By contrast, the former President has none of that. And so, one, I am so proud to have served as Vice President to Joe Biden. And two, I am so proud to be running with Tim Walz for President of the United States, and to bring America what I believe the American people deserve, which is a new way forward and turn the page on the last decade of what I believe has been contrary to where the spirit of our country really lies. [my emphasis]

In a question implicitly about how successful she has been thus far, in the race, Kamala defined who Biden is, present tense, and then explicitly contrasted that to Trump. Biden has, present tense, the intelligence, commitment, judgment, and disposition to be President, and Trump has, present tense, none of that. That’s what she used to springboard from her tenure as Vice President into her candidacy with Walz, a way to turn the page on the last decade that has been contrary to the spirit of the country.

Bash, like Epstein, tried to make this a gotcha, which is when Kamala explained for the second time what she was talking about.

Bash: The last decade — of course, the last three and a half years has been part of your Administration.

Harris: I’m talking about an era that started about a decade ago where there is some suggestion — warped, I believe it to be — that, the measure of the strength of a leader is based on who you beat down, instead of where I believe most Americans are, which is to believe that the true measure of the strength of a leader is based on who you lift up. That’s what’s at stake as much as any other detail that we could discuss in this election. [my emphasis]

But then Harris returned to what she said in that very first question: When she says “last decade” as stand-in for the opponent she won’t name, she means that a different vision of leadership is as important as any of the policy questions.

Where things turn to a past tense in which Harris does not presume herself to have participated — the one that Shear quotes to support his claim that “she talked about Mr. Biden mostly in the past tense” — came in response to her telling of how Biden told her he was going to drop out, which led her to think about how history — people in the future — will regard Joe Biden and the decision he was making, placing this past tense as past to some future time when pundits finally get their heads out of their asses.

The VP told the story: she was interrupted while making extra bacon for one of her grand nieces by a call from Joe Biden. Biden told her his decision, and, “I asked him, are you sure. And he said, yes. And that’s how I learned about it.”

The past tense Shear quoted came in response to a follow-up.

Bash had asked, and pressed a second time, whether Biden offered to endorse Harris right away. Harris responded that Biden was very clear he was going to support her (Kamala didn’t actually answer about the endorsement, but then they may have had earlier conversations), but that that wasn’t her first priority.

My first thought was not about me, to be honest with you. My first thought was about him, to be honest.

She then launched on a reflection about what, “I think history is going to show” about Joe Biden’s presidency, describing it as transformative economically, bringing back American alliances. Then she addressed “the character of the man.”

This is a question that goes back to one of two reasons Biden offered in February why he remained in the race: because he was really good at being President. The other (as I reviewed the day after the debate) was that he believed, in February, he had the best shot at beating Trump.

On July 21 — on the day that Biden was still scrambling to make the prisoner exchange with Russia even as NYT pundits were falsely reporting he was totally isolated — Biden was still very good at being President. With the significant exception of Gaza, he may still be. By that point on July 21, though, it had become clear that Harris is better able to beat Trump. As suggested by Epstein’s begrudging admission that when Kamala lays out Biden’s economic accomplishments, they look pretty good, part of that is defending the things the Biden Administration did to recover from the mistakes Trump made.

But part of it is offering a contrast with Trump. Which, because Harris apparently chose not to name her opponent and not to let silly pundits demand a response to Trump’s latest attention-getting provocation, as Bash did with a question about Trump’s presumption to define Harris’ race, the Vice President is referring to as a last decade. She did it in response to the first question, and she did it a second time in response to the question NYT chose to write about twice.

This is actually a pretty subtle way to do this. Obviously, Harris has befuddled two men who imagine themselves experts.

In their confusion about it, though, Epstein and Shear make a similar mistake to the one their colleague Shane Goldmacher did when he described that Kamala was running as a change candidate. They did so, even though Goldmacher himself referred to what Kamala was running against as Trump’s “decade”-long “bulldozing approach” advocating for “urgent upheaval.”

[S]o much of Trump’s lasting influence is about his lasting attack on rule of law. The insistence that this is about incumbency obscures the real threat Trump poses to democracy, whether or not he’s president.

Take this crazy Goldmacher paragraph.

For nearly a decade, Mr. Trump’s bulldozing approach has been premised on the idea that the nation was staring into an abyss and only urgent upheaval could save the country. The question for Ms. Harris is whether she can frame Democrats keeping power in 2024 as a break from that dark and divisive era.

It is true that Trump has been claiming that “only urgent upheaval could save the country.” But that was a fascist trope. It wasn’t true and even if it were, none of the policies Trump pushed would do anything but enrich people like him. Journalism should do more than observe that he made those false claims; it should explain why they’re false.

In the very next sentence, though, Goldmacher asserts that the challenge for Kamala (again adopting the dumb poll-driven assumption that she’ll only win if she is the change candidate) is by offering, “a break from that dark and divisive era.” What “era”? By reference, Goldmacher must mean that the near-decade in which Trump has told fascist lies is the “dark and divisive era” (though Trump’s racist birtherism started long before that). But it’s not an era. It’s a fascist belief, a means of exercising power, a means of dehumanizing your political opponents, one that had huge influence, but one that with the exception of the political violence it fostered, only held sway over a minority of the country (albeit a large one).

All three of these men — Goldmacher with his treatment of Trump’s tropes about America as an era, Epstein with his confusion about Harris’ (second) reference to a decade, and Shear’s invention of past tense usage that doesn’t exist — struggle because they’re viewing this exclusively about policy, even though Harris described that “the true measure of the strength of a leader” is “what’s at stake as much as any other detail that we could discuss in this election.”

As I noted in the earlier post, when people flatten this out into policies and incumbency, they ignore the ongoing threat that Trump poses to democracy and Kamala’s vision of how to defeat it.

Kamala is running on democracy just as much as Biden did in 2020. It just looks different, because she has more successfully wrapped it in a bipartisan flag. Even there, there’s real continuity (don’t forget that one of Biden’s most important speeches about democracy in 2022, one that had a real impact on the election, was at Independence Hall).

Largely enabled by Trump’s ongoing effect — again, especially on Choice — Kamala has just found a way to make democracy matter more personally, more viscerally.

Kamala is not eschewing the incumbency she has Vice President. On the contrary, she is running on a continuation and expansion of Joe Biden’s successful policies (even if journalists are missing that). And she is running, just as Biden did, on defeating both Trump’s electoral bid but also the threat he poses to democracy itself.

This is precisely why the NYT said the stakes on Biden dropping out were so high as it kicked off a relentless campaign to force Biden out: because, first, Donald Trump was a menace, and second, Biden didn’t have what it takes to hold Trump accountable.

Donald Trump has proved himself to be a significant jeopardy to that democracy — an erratic and self-interested figure unworthy of the public trust. He systematically attempted to undermine the integrity of elections. His supporters have described, publicly, a 2025 agenda that would give him the power to carry out the most extreme of his promises and threats. If he is returned to office, he has vowed to be a different kind of president, unrestrained by the checks on power built into the American political system.

[snip]

He struggled to respond to Mr. Trump’s provocations. He struggled to hold Mr. Trump accountable for his lies, his failures and his chilling plans. More than once, he struggled to make it to the end of a sentence.

These self-imagined pros apparently haven’t thought through how this all works. Epstein, at least, is still looking for his pound of flesh, for further humiliation for Joe Biden. The others are ignoring the two tasks: win an election, and reinvigorate an American dream that — because doing so would prove that democracy can deliver for the middle class — proves the value of democracy.

Kamala Harris is, in no way, disavowing Joe Biden. Rather, even as she’s pitching their joint policy success, she’s renewing the effort to package an American exceptionalism that can defeat Trump’s American carnage.

In 2020, Joe Biden, a member of the Silent Generation, offered a defense of democracy as democracy, which was enough for people who remember fascism and actual communism. In an era when many have forgotten that history and lost faith in democracy, GenX Kamala Harris has to do something more: She has to sell democracy, which Trump has been discrediting for a decade, itself.

As the mainstream press continues to soil itself like toddlers over Kamala Harris’ interview tonight, I was going to use this CNN piece — suggesting questions about how the VP’s stance on immigration has changed — as an example of the complete collapse of any sense of newsworthiness.

After all, Donald Trump has still never been asked, much less answered, how he plans to fulfill his promise of mass deportations, something that might be impossible without dramatic escalation of police force against both citizens and not. He hasn’t been asked how he’ll pay for it, which would be prohibitively expensive. He hasn’t asked who will do the jobs, such as in agriculture, that keep America’s cost of living relatively low. He hasn’t been asked if he’ll separate families, especially marriages empowered by Obergefell.

Trump hasn’t been asked the most basic questions about one of his only policy promises.

CNN’s Eva McKend has really good questions about immigration policy. In another place and time they’d be totally valid questions!

But given the failure by the entire press corps to ask Trump about a policy promise that would serve as — and assuredly is intended to serve as — a bridge to fascism, it is the height of irresponsibility to waste time on the shifts in Harris’ immigration views, because they don’t matter in the face of Trump’s promises to sic cops on American families in pursuit of brown people.

So that was going to be my exemplar of how completely the press corps has lost any sense of proportionality regarding what counts as news.

Then I read this piece from ABC, which makes a big deal out of the fact that in 2003 — 21 years ago!!! — some Kamala Harris campaign fliers said she prosecuted over a hundred cases, when she should have said she was involved in that many.

But during a debate held in the runup to Election Day 2003 on KGO Radio, Harris’ then-opponent, veteran criminal defense attorney Bill Fazio, accused her of misleading voters about her record as a prosecutor and deputy district attorney in California’s Alameda County.

“How many cases have you tried? Can you tell us how many serious felonies you have tried? Can you tell us one?” Fazio asked Harris, according to audio ABC News obtained of the debate, which also included then-current San Francisco District Attorney Terence Hallinan.

“I’ve tried about 50 cases, Mr. Fazio, and it’s about leadership,” Harris responded.

Fazio then pointed out campaign literature where Harris had been claiming a more extensive prosecutorial record.

“Ms. Harris, why does your information, which is still published, say that you tried hundreds of serious felonies? I think that’s misleading. I think that’s disingenuous. I think that shows that you are incapable of leadership and you’re not to be trusted,” Fazio said. “You continue to put out information which says you have tried hundreds of serious felonies.”

[snip]

Asked this week about Harris’ prosecutorial experience before she became district attorney, a spokesperson for Harris’ presidential campaign used slightly different language to describe her record — saying she was “involved in” hundreds of cases.

This is insane!! Having prosecuted 50 felonies is a lot, for an entire career! To make a stink about this 21-year old misstatement would be unbelievable on its face.

But it is just contemptible, given the amount of lies Donald Trump tells about his own crimes that ABC lets go unmentioned.

Just as one example, check out how ABC covered Donald Trump’s August 8 Mar-a-Lago presser. In that presser, Trump seems to have falsely claimed he did oversee a peaceful transfer of power (the only lie NYT called out in its coverage of this presser). He lied about the four people who were killed that day. He lied about his role in sending his mob to the Capitol. He lied about what those mobsters chanting “Hang Mike Pence” were seeking to do. He lied about how Jan6 defendants are being treated. [All emphasis here and elsewhere my own.]

QUESTION: Mr. President, you were – you just said that it was a peaceful transfer of power last time when you left office. You didn’t (inaudible) …

TRUMP: What – what’s your question?

QUESTION: My question is you can’t (inaudible) the last time it was a peaceful transfer of power when you left office?

The second one (ph) …

TRUMP: No, I think the people that – if you look at January 6th, which a lot of people aren’t talking about very much, I think those people were treated very harshly when you compare them to other things that took place in this country where a lot of people were killed. Nobody was killed on January 6th.

But I think that the people of January 6th were treated very unfairly. And they – where – they were there to complain not through me. They were there to complain about an election. And, you know, it’s very interesting. The biggest crowd I’ve ever spoken to, and I said peacefully and patriotically, which nobody wants to say, but I said peacefully and patriotically.

Trump made a misleading crack meant to suggest that Arthur Engoron undervalued Mar-a-Lago.

TRUMP: It’s a hard room because it’s very big, if you don’t …

(LAUGHTER)

… this is worth $18 million.

Trump lied that the prosecutions against him — all of them — are politically motivated. He lied that “they” have weaponized government against him. He lied that the Florida case, in which he was investigated for the same crime as Joe Biden, was weaponized. He falsely claimed that the NY cases are controlled by DOJ.

TRUMP: Because other people have done far bigger things in see a ban [ph] and sure, it’s politically motivated. I think it’s a horrible thing they did. Look, they’ve weaponized government against me. Look at the Florida case. It was a totally weaponized case. All of these cases.

By the way, the New York cases are totally controlled out of the Department of Justice. They sent their top person to the various places. They went to the AG’s office, got that one going. Then he went to the DA’s office, got that one going, ran through it.

No, no, this is all politics, and it’s a disgrace. Never happened in this country. It’s very common that it happens, but not in our country. It happens in banana republics and third-world countries, and that’s what we’re becoming.

Trump claimed he wouldn’t have wanted to put Hillary in jail when, on his orders, DOJ investigated the Clinton Foundation for the entirety of his term and then John Durham tried to trump up conspiracy charges against her (and did bring a frivolous case against her campaign lawyer). Trump also lied about calming, rather than stoking, the “Lock her up” chants at rallies. Trump lied about what files Hillary destroyed after receiving a subpoena (and who destroyed them).

TRUMP: I don’t think it’s appropriate for me to talk about it. I think it’s a tragic story, if you want to know the truth. And I felt that with Hillary Clinton, too. You know, with Hillary Clinton, I could have done things to her that would have made your head spin. I thought it was a very bad thing, take the wife of a President of the United States and put her in jail. And then I see the way they treat me. That’s the way it goes.

But I was very protective of her. Nobody would understand that, but I was. I think my people understand it. They used to say “lock her up, lock her up,” and I’d say “just relax, please.” We won the election. I think it would be very – I think – I think it would have been horrible for our country if I – and we had her between the hammering of all of the files.

And don’t forget, she got a subpoena from the United States Congress, and then after getting the subpoena, she destroyed everything that she was supposed to get. I – I – I could – it – I didn’t think – I thought it was so bad to take her and put her in jail, the wife of a President of the United States. And then when it’s my turn, nobody thinks that way. I thought it was a very terrible thing. And she did a lot of very bad things. I’ll tell you what, she was – she was pretty evil.

But in terms of the country and in terms of unifying the country, bringing it back, to have taken her and to have put her in jail – and I think you know the things as well as I do. They were some pretty bad acts that she did.

Depending on how you count, that’s around twelve lies in one hour-long press conference. They’re proof of Trump’s abuse of the presidency, his refusal to cooperate with an investigation like Joe Biden had, his lifelong habits of fraud, and his assault on democracy.

And these are only the lies about his own (and his eponymous corporation’s) crimes! They don’t include the lies about abortion or gun laws and shootings, other lies about the law he told in that presser.

And yet ABC covered none of those lies, focusing instead on Trump’s false claims about crowd size.

Crowd size.

These aren’t the only lies about justice Trump routinely tells. He routinely lies that he “won” the documents case, that he was declared innocent or that Biden was only not prosecuted because he was too old. They don’t include the lies Trump has told about the Hunter Biden case, the Russian investigation, his actual actions in the Ukraine impeachment. Trump continues to lie about whether he sexually assaulted E Jean Carroll. He lies about his Administration’s jailing of Michael Cohen to shut him up.

Then there are Trump’s renewed false claims, in the last day, about the superseding indictment against him.

Trump lies all the time. He lies about the cases against him, about his own crime. He lies with a goal: to present rule of law as a personal grievance. Those lies go to his core unfitness to be President.

And yet, aside from some good reporting (particularly from Katherine Faulders) on these crimes, ABC never bothers to fact check Donald Trump’s lies about rule of law, not even his own prosecutions.

It is the height of irresponsibility to adopt this double standard — to ignore Trump’s corruption of rule of law while chasing a campaign exaggeration made two decades ago. It was bad enough that the press corps sits there, docilely, as Trump corrupts rule of law every time he opens his mouth. But to then try to make a campaign issue about whether Kamala Harris was involved in or prosecuted 50 cases decades ago?

ABC claims that Kamala Harris made misstatements. But their own failure to report on Trump’s false claims is a far, far greater misrepresentation of the truth, and it’s a misrepresentation of the truth they repeat every day.

Yesterday, France charged Pavel Durov and set €5 million bail for the Telegram founder. The public release regarding the charges provides scant new detail from what prosecutors released when he was first arrested.

For example, the new release confirms that a preliminary inquiry started in February, before the formal investigation was started on July 8. That’s consistent with a Politico report that France first issued arrest warrants for Pavel and his brother, Nikolai, subsequent to an investigation into someone using Telegram to engage in child sexual abuse, including rape.

Warrants for Pavel and his brother Nikolai, the platform’s co-founder, were issued on March 25 over charges including “complicity in possessing, distributing, offering or making available pornographic images of minors, in an organized group.” French media had previously reported the probe was opened in July.

The warrants were issued after an undercover investigation into Telegram led by the cybercrime branch of the Paris prosecutor’s office, during which a suspect discussed luring underaged girls into sending “self-produced child pornography,” and then threatening to release it on social media.

The suspect also told the investigators he had raped a young child, according to the document. Telegram did not respond to the French authorities’ request to identify the suspect.

The list of charges in the release yesterday does not exactly match those released last week. The lead charge, “web-mastering an online platform in order to enable an illegal transaction in organized group,” is further described as a crime that carries a 10-year sentence and/or a €500,000 fine. Given how particular French code is about punishment, one might be able to hone in what lead crime that language is pursuing (it seems more common for five year sentences to match a €150,000 fine).

In addition to listing Telegram’s refusal to cooperate with law enforcement requests second among suspected crimes, as the original release did, yesterday’s release has that bolded below, with a description of how other authorities, including Belgium, are having the same problem. This investigation seems to primarily stem from the way Telegram has allowed crimes to flourish on the platform, and as such, most of the rest of the charges may reflect efforts to further criminalize Durov’s choice to do nothing about crimes that rely on Telegram.

There are other changes between the initial release and yesterday’s, which may be of little or no import or may reflect what prosecutors have learned since they arrested Durov. For example, possessing (as distinct from disseminating) CSAM images has been dropped; that’s the kind of change that might reflect the server configuration Telegram uses, and whether any Telegram server hosts CSAM material within France.

Criminal association has now been included in the general list, rather than as a separate bullet point. Money laundering, however, has not. One unanswered question is whether Durov was more directly involved in money laundering than the other crimes, in which case prosecutors might show that he had a personal pecuniary incentive to let all the other crime flourish on Telegram.

In that same general list, the dissemination of hacking tools was moved up to first, from fourth.

But one of three encryption-related crimes, “Importing a cryptology tool ensuring authentication or integrity monitoring without prior declaration,” was dropped. Again, that could reflect new information about server locations.

It’s the commentary regarding the (now two) encryption-related crimes that most befuddles me. The American press, at least, continues to discuss this as if this is a crime about using encryption.

Some online speech experts and privacy advocates agreed that France’s indictment of Durov raises concerns for online freedoms, pointing in particular to charges relating to Telegram’s use of cryptography, which is also employed by Apple’s iMessage, Meta’s WhatsApp and Signal.

“French law enforcement has long hated encryption,” said David Kaye, a professor at University of California, Irvine School of Law and former U.N. special rapporteur on freedom of expression. “This seems like a potential avenue for them to blame what happens on Telegram at least in part on encryption, when the truth is that the other counts suggest that Telegram’s noncooperation with judicial orders is the real problem.”

Stamos agreed the charges related to cryptography are “concerning,” because “that seems to apply even to platforms that are actively working to prevent the spread of child sexual abuse material.” He said that while Telegram has at times banned groups and taken down content in response to law enforcement, its refusal to share data with investigators sets it apart from most other major tech companies.

As far as I understand it, the law in question is one passed in 2004 that required affirmative registration of encryption. Signal, easily the most protective encrypted messaging app, did register under this law when it first applied to offer Signal in French app stores. So, no, they’re not going to be prosecuted under that law, because they’re following the law.

And therein lies the question I keep asking but people are ignoring: whether this law works like the affirmative registration requirements in the US for acting as a foreign agent. The US uses 18 USC 951, for example, to prosecute people who are secretly doing things for a foreign government — such as the targeting for which Maria Butina was prosecuted — without having to prove they were affirmatively spying. DOJ didn’t have to prove that Butina (speaking purely hypothetically here) honey trapped Patrick Byrne as part of a Russian effort to recruit nutballs with an investment in cryptocurrency; they could instead prove merely that she was taking orders from a government official (in this case, Alexandr Torshin), without alerting DOJ to that fact. The obligation to register provides a law enforcement tool that can be used when an underlying crime — like spying — is far more difficult to prove, or would harm counterintelligence if one tried.

For example, 18 USC 951 was used in the failed prosecution of Mike Flynn and his business partner, Bijan Kian. it wasn’t until the eve of the Kian’s trial that DOJ revealed the existence of, but not the details about, far more extensive communications pertaining to Flynn and the Turks (that revelation did not explain whether these were communications between Flynn and the Turks, and/or communications the Turks had about Flynn) than had previously been revealed.

I don’t know if this is how France uses this law, or if they may be doing here. What I’m saying is that the crime is failing an affirmative obligation to register, a law that has not prevented Telegram’s counterparts from operating lawfully in France.

Let me extend the analogy to a case where we know Telegram was used to facilitate crime (though not one of the crimes in which Durov has been charged with complicity).

As I laid out here, we know that after January 6, the FBI discovered that the Proud Boys were using unencrypted Telegram group chats to organize in advance of the insurrection. But once it obtained and exploited Enrique Tarrio’s phone, which took over a year to do, the FBI also discovered that Tarrio was using Telegram (in addition to Google Voice chat and iMessage) to communicate with a DC intelligence cop, Shane Lamond. Those encrypted communications will be key evidence in Lamond’s trial in October, but the use of Telegram, whether encrypted or not, was not a crime and not charged as one.

Those Telegram communications include:

• The message where Lamond was added to an unencrypted Proud Boys chat (meaning, of course, that a cop with close ties to the FBI did know how the Proud Boys were using Telegram long before January 6, and indeed Tarrio tried to use his comms with Lamond as an affirmative defense to the sedition charges against him).
• Private unencrypted Telegram messages that at least started as Lamond’s effort to learn what the Proud Boys were doing ahead of time, and so fell squarely within Lamond’s job as an intelligence officer, but which — after the election — started to include advice about how to avoid law enforcement scrutiny.
• Starting after the December 12, 2020 burning of a DC Church’s BLM flag, secret, encrypted Telegram messages about Tarrio’s role in that act and the investigation into him for it; those encrypted communications would later include discussion of the planning and aftermath of January 6.
• Telegram calls about the investigation that could not be reconstructed (though some conducted with his replacement phone may have been).
• Starting on December 22, encrypted Telegram messages with the auto-delete set; the FBI was able to reconstruct some, but not all, of these. Among those they weren’t able to reconstruct, a January 4, 2021 encrypted text successfully destroyed must have alerted Tarrio that DC had obtained a warrant for his arrest, because Tarrio immediately told some girlfriends and Jacob Engels via unencrypted Telegram texts, as well as some Proud Boy Telegram group chats, that about the arrest warrant. The men appear not to have tried to delete Tarrio’s self-exonerating encrypted Telegram text, “I could have stopped this thing.” But they did resume destroying encrypted Telegram messages as the investigation into the Proud Boys progressed.

That use of Telegram, whether unencrypted, encrypted, and/or self-deleting, is not illegal in the US. Rather than busting Lamond for that, prosecutors charged him for lying about the earlier communications, for obstructing the investigation into burning the BLM flag. There’s no charge related to Lamond’s warnings about January 6, and indeed, the reconstruction or not of later texts between the men is not included in the trial exhibit. But more of the January 6 texts were successfully destroyed.

Now consider the significance of a case where cops knew a militia group were using Telegram’s unencrypted features, ones the FBI could have hacked, but that collusion between the militia and law enforcement was hidden via the use of Telegram’s encryption. The FBI wasn’t looking in any case, but even if they had been, it is at least conceivable where a seditionist like Tarrio used better operational security and didn’t immediately undercut the value of using encryption by blabbing to others, but that the encryption prevented the FBI from understanding the extent that the cops were helping the seditionists.

The use of Telegram is not illegal in the US. As I understand it, the use of it is not being charged in France.

But in France, the requirement to pre-register provides a tool prosecutors might choose to use if the use of encryption ends up playing a detrimental role in crimes in the country, as Telegram notoriously has.

I have no idea whether that’s how it’s being used here.

But it is at least possible that Durov is being charged under these two encryption crimes because criminal (or intelligence) investigations in France discovered, via exploiting suspects’ phones or possibly even with the help of a cooperating witness, that Telegram encrypted chats played a key role in one or another particular plot. That could have been nothing more than the child sexual abuse whence this investigation started. Or it could be something that raised the stakes for France, such as sabotage attempted by a foreign power.

Pavel Durov is being charged because communications to which Telegram had ready access were used to commit a number of crimes (but not, notably, hate crimes). Far too many outlets are describing these crimes as pertaining to encryption; it may not be. It pertains to the commission of crimes, using Telegram, including a great number that Telegram allegedly had means to learn about but, by refusing law enforcement process, sustained deniability.

It appears that he is also being charged because he made it possible to further protect communications, including from Telegram engineers, without following French registration laws before he did that. That is, France appears to be charging Durov not because he knows what the encryption is serving to hide, but by dint of his failure to adhere to French registration requirements, his plausible deniability regarding encryption doesn’t help him dodge criminal liability.

I may be misunderstand the law — I’m still looking for French sources to explain this, because American ones are not citing French lawyers — but if people are writing about the role of encryption in this case, the difference between “providing” encryption and “providing it without registration” is key.

Update: Since we’re focused on Telegram’s non-cooperation with law enforcement, this exhibit list for Lamond’s trial shows how they have to authenticate those comms instead: Through a variety of forensic reports, and then via summary chart.

Sunday marked the 1/3 mark for Kamala Harris’ presidential campaign (36 of 107 days). Yesterday, she announced her first sit-down interview (with Dana Bash, whom I consider a poor choice); the media hounds are already wailing that, like interviews Barack Obama did with Joe Biden, Mitt Romney did with Paul Ryan, and Trump did with Mike Pence, the Vice President will do the interview with her own VP nominee.

By comparison, Sunday marked the 9/10 mark for Trump’s presidential campaign (650 of 720 days).

Meanwhile, there are a slew of question to which media hounds have not bothered to demand answers from Trump:

• Will he hire his failspawn to work in White House again?
• What is Trump’s business relationship with Emiratis and Saudis?
• Where are his tax returns?
• Did Trump get $10 million from Egypt to stay in 2016 race?
• Where are the missing classified documents?
• What did Putin say in Helsinki?
• Did Trump have an overt quid pro quo on the Stone, Bannon, and Manafort pardons?
• How much of his campaign donations has he spent on legal defense?
• How and (why?!?!) does Trump plan to implement his plan of mass deportation?

In the wake of the DNC, there have been some really good critiques of the media’s failure. Asawin Suebsaeng mocked at the “mollycoddled hogs” who bitched about their own access while bemoaning that of influencers, the bloggers of 2024.

Much of what I witnessed and heard about during my time in Chicago reinforced my preexisting beliefs that far too many so-called elite members of my profession — national political media scribes who fancy themselves as speaking truth to power, but more often just speak words to financially destructive Google algorithms — are mollycoddled hogs who are doing everything they can to fail to meet the enormity of this moment.

Like Suebsaeng, Will Bunch grieved the way journalists were blowing this most important election. He cited three examples:

• Axios’ Alex Thompson laundering a right wing smears about a typo Tim Walz’ campaign made in 2006 just like he laundered right wing smears about Hunter Biden with little notice from Democrats
• Rich Lowry’s argument that if Trump repeats a lie over and over — like his 2016 claim that he would build a wall and Mexico would pay for it — that would amount to “character” that might launch him to victory
• Various “fact checks” that discount direct quotations of Trump’s comments because he later reneged on those quotes

Citing Mark Jacobs, Bunch also flipped Suebsaeng’s focus on mainstream gripes about influencer access. Bunch laid out how, in significant part because of declining trust in mainstream media, those influencers are actually the best route for Kamala Harris to reach voters, particularly the ones who can make the difference in the election.

Jacob has harsh words for how reporters have covered the race, writing that “too many political journalists are marinating in the Washington cocktail culture, writing for each other and for their sources — in service to the political industry, not the public.” But he also notes that traditional media can’t figure out how to compete for young eyeballs against sites like edgy and fast-paced TikTok. Jacob pointed out that public faith in mass media has plunged from 72% in 1976, after Watergate, to just 32% today.

You know who gets the new landscape better than anyone else? Kamala Harris.

The vice president and Democratic nominee is running to be America’s first post-media president. In Chicago, much was made of the fact that Team Harris and the Democrats invited 200 sometimes fawning internet “content creators” who got VIP treatment while mainstream journalists fought over nosebleed-level seats and refrained from eating or going to the bathroom for fear of losing them.

I would add several comments about the real tensions between mainstream reporters and influencers.

First, these discussions of tensions between influencers and journalists have ignored what has happened among right wing media in the last decade– during which time people who would have formerly been called “influencers” (or, more accurately, trolls) have become mainstream, including even former shitty blogger JD Vance. What Harris has done by welcoming these influencers was to foster a progressive media infrastructure akin to the one Barack Obama largely let collapse after his win. If Democrats are lucky, in a matter of years, influencers will be able to feed lazy hacks like Alex Thompson stories that he’ll package up and DC insiders will imagine that amounts to journalism. Until then, they may be able to magnify genuine right wing scandals that the media otherwise ignores. One source of the double standard with which mainstream media has always treated Trump, for example, is this pressure from the right, which really does dictate a lot of press coverage (and which, the Douglass Mackey exhibits showed, those trolls explicitly set out to do as early as 2015).

Second, one thing few people have — still! — accounted for is the degree to which Trump has never been asked to explain policy, allowing him to instead coast on the goodwill and trust accrued over decades of appearing in people’s living room as a TV star. The imagined authenticity that Trump — still! — wields from that gives him an enormous advantage.

To counter that, there’s real value in Tim Walz doing appearances with influencers like this one.

Not only will Walz appear to be an authentic Midwesterner because he shops at Eau Claire based big box store Menards (I, a snooty outsider when I lived in the Midwest and someone who had other people do my gutters, tended to shop at the pricier Lowes instead).

And there’s no quicker way to convey that he understands how middle class people budget than his comment about sending in receipts to get an 11% rebate.

Most of those that Suebsaeng called mollycoddled hogs would be hard-pressed to understand, much less explain, the thick cultural connotations of this video. Instead, Walz just performs it, with his off-tune Menards jingle rendition to boot.

In other words, it’s not just that Harris has chosen to prioritize those who have trust with the voters she needs to mobilize. Influencers do several other things — things that are absolutely crucial for competing against Trump — that were encouraged on the right but are deemed a slight to journalism now.

Meanwhile, journalists treated with respect are increasingly pumping out Trump-scripted propaganda. Maggie Haberman and Jonathan Swan have been releasing increasingly supine coverage for months. They falsely reported that a platform that enshrines fetal personhood presented a “softened” GOP face on abortion. After a year of reporting on policies that directly parallel those in Project 2025, Maggie floated Trump’s complaints that Democrats were calling him on it. When that team reported on Trump’s Mar-a-Lago “press conference,” the only lies they called out were Trump’s claim to have left office peacefully — but not his lies about the Biden-Harris hand-off, Kamala’s record, Biden and Pelosi’s demeanor, prosecutions of him, Willie Brown and a near-crash in a helicopter, the price of bacon, polling, or even crowd size.

But with yesterday’s coverage of the RFK Jr and Tulsi Gabbard news, this team really stepped over into joining Trump’s faked conflict. Both the subhead and the story presented the two as “progressive Democrats,” adopting Trump’s apparent goal in countering the increasing number of Republicans who are endorsing Kamala Harris.

Both Mr. Kennedy and Ms. Gabbard spent most of their public life as progressive Democrats. Only four months ago, Mr. Trump was calling Mr. Kennedy a “Radical Left Lunatic” who was “far more LIBERAL than anyone running as a Democrat.” Trump allies pushed stories about Mr. Kennedy’s record of supporting abortion rights and far-left environmentalism as they tried to make his independent candidacy less appealing to Trump voters.

The basis for treating RFK as such was a citation from comments Trump made earlier this year, when he was lying about Kennedy in order to improve RFK’s value as a spoiler to Joe Biden. It was all a show, the kind of drama any wrestling promoter uses to enhance the character of his conflicts. And yet Maggie and Swan just quoted it as if they’re too stupid to know Trump’s comments were all a show.

When Maggie and Swan “broke” the “news” that Tulsi was helping Trump with debate prep just weeks earlier, they included details also appearing in yesterday’s piece (such as about Tulsi’s long friendship with Trump, which totally undermines the claim that this association is news), but also repeated something else that is, at best, Trump’s interpretation of how well Tulsi did in the 2019 debate against Kamala.

Ms. Gabbard, who left the Democratic Party after her 2020 presidential run and has rebranded herself as a celebrity among Trump’s base of support, has long been friendly with Mr. Trump and was briefly considered to be his running mate. But her involvement in Mr. Trump’s debate preparation, which has not previously been reported, was partly because of her own performance in a 2019 Democratic presidential primary debate, when Ms. Gabbard eviscerated Ms. Harris in a memorable onstage encounter. [my emphasis]

The unmarked repetition of this opinion is particularly relevant given that others argue Kamala eviscerated Tulsi, precisely because the then-Senator called out all the ways Tulsi was already simply posing as a Democrat so as to platform her attacks on the party.

And Democrats have long been repulsed by Tulsi’s apologies for dictators, starting with Bashar al-Assad, but including Vladimir Putin.

You don’t have to decide which woman eviscerated the other. Indeed, avoiding such comment would invite a better explanation for Tulsi’s role in Trump’s orbit, one that these two Trump-whispers don’t claim to know.

Do they — two Trump whisperers who have covered Trump for years — not know that Trump is just a carnival barker, setting up conflict to distract people performing a role called journalism? Have they unwittingly come to merge their own consciousness with his? Or are they just wittingly part of the kayfabe now themselves?

Whichever it is, as actual journalists continue to treat Trump’s obvious con without comment, it flips the complaints about influencers back on its head.

The coverage Trump has enjoyed has long worked to pressure straight journalists into covering things with a right wing spin. And these days, it’s not clear whether the straight journalists need any help.

In this Xitter thread, I went through everything that had been added or removed from the superseding indictment against Trump, based on this redline. The changes include the following:

1. Removal of everything having to do with Jeffrey Clark
2. Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
3. Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
4. Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
5. Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
6. New language about the treatment of the electoral certificates

Altogether, the changes incorporate not just SCOTUS’ immunity decision, but also the DC Circuit’s Blassingame decision deeming actions taken as a candidate for office are private acts, and SCOTUS’ Fischer decision limiting the use of 18 USC 1512(c)(2) to evidentiary issues.

The logic of Blassingame is why Jack Smith included these paragraphs describing that Trump and Pence were acting as candidates.

1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.

[snip]

5. In furtherance of these conspiracies, the Defendant tried–but failed–to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate, who plays a ceremonial role in the January 6 certification proceeding.

As I’ve said repeatedly, it’s not clear that adopting the Blassingame rubric will work for SCOTUS, even though they did nothing to contest this rubric.

That’s because Chief Justice Roberts used Pence’s role as President of the Senate to deem his role in certification an official responsibility, thereby deeming Trump’s pressure of Pence an official act. Smith will need to rebut the presumption of immunity but also argue that using these conversations between Trump and Pence will not chill the President’s authority.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict ofInterest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

This is the most important advantage of superseding the indictment. When someone boasted to Bloomberg that Jack Smith’s purported decision not to have a mini-trial on these issues was a “win” for Trump, they envisioned that this meant there would be no media friendly election-season developments, providing a way to get through (a successful or stolen) election so future President Trump could throw the case out.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.

The decision to supersede this indictment may have turned what could have been an immediate dispute about the viability of the indictment at all into an evidentiary dispute to be managed later. We’ll find out more on Tuesday.

At the very least, Jack Smith suggests he has something viable on which to arraign Trump (and Trump’s Xitter wails treating this as a real indictment suggest he may believe that).

Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.

That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.

Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

[snip]

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]

This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.

But the other changes in this passage are all about Fischer, about showing how Trump deliberately sicced a mob on the Capitol with the goal of making it impossible to count the certifications.

After adding language from Trump’s speech (included based on the justification that the rally was paid for by private funds) in which he emphasized the certification process, Smith added other language describing how Trump’s mob disrupted the vote certification over which Pence was presiding.

Everything italicized below is new.

86d. The Defendant specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

[snip]

90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.

91. A mass of people-including individuals who had traveled to Washington and to
the Capitol at the Defendant’s direction-broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

93. At 2:13 p.m., after more than an hour of steady, violent advancement, the
crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House also was forced to recess.

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

96. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

This narrative ties the mob, particularly the storming of the Senate chamber, directly to Trump’s goal of interrupting the counting of the electoral certificates. This instrumentality was always a part of the indictment — has been part of this investigation since no later than January 5, 2022. But Roberts’ dual interventions in the January 6 prosecutions forced Smith and crime scene prosecutors working under US Attorney Matthew Graves to make it far more explicit.

A significant number of mobsters either knew the import of the certificates ahead of time, and/or heard Trump describe the goal at the Ellipse, and when they stormed the Capitol, assaulted cops, and occupied the space that the Vice President had only just evacuated, they had the goal of preventing the authentic certificates from being counted.

And Jack Smith is making this argument before Judge Chutkan even as other prosecutors are making a parallel argument before other judges.

As DOJ laid out in their filing describing how they plan to retry Matt Loganbill (who joined Alex Jones as he opened a second, eastern front on the attack on the Capitol) under the new Fischer standard, Loganbill had the goal of getting Pence to shred the envelopes as early as December 20, 2020, and after he stormed the Capitol, he headed towards the Senate where he believed they were counting the vote.

• On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
• On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
• On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
• On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

Here’s how DOJ plans to prove that the Chilcoats, Shawndale and Donald, planned to prevent the votes from being counted by occupying the Senate.

[A]t approximately 2:46 p.m., the defendants watched rioters attempt to break open windows, then entered the Capitol building itself through a broken-open door on the building’s northwest side. A cell phone video shows that, after they learned of the breach, Donald Chilcoat cautioned Shawndale Chilcoat that they should let other rioters enter first. That way, if the police deployed pepper spray, those other rioters, and not the Chilcoats, would bear the brunt of it. In other words, the defendants knew they were not welcome, and they knew their entry might be met with force. After the defendants entered the building, they traveled to the Senate Chamber – the very place where the proceeding was taking place – and joined other rioters in occupying it. There, they took photographs and remained in the chamber while other rioters searched desks belonging to the former Vice President and to Senators.

Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote. And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider. On January 4, 2021, via Facebook, a friend of Shawndale Chilcoat told her to “give Rob Portman a call and let him know what you think of him not rejecting the fraudulent votes.” Shawndale Chilcoat affirmed “just did.” Then, late on January 5 or early on January 6, Shawndale Chilcoat posted a message to Facebook saying that “[Vice President] Pence is stating he can not reject the votes.” On January 7, 2021, after the riot, Shawndale Chilcoat admitted “we were just trying to stop them from certifying the votes and didn’t know they were already gone.” On the same day, she also bragged, “[o]k so antifa is being blamed for breaking windows and storming congress. Um no, it was us I was with them and couldn’t be more proud.”

Here’s one of the most interesting things about yesterday’s superseding indictment.

The efforts to address Fischer are intertwined. While DOJ might be able to sustain some obstruction cases against rioters based on their own communications, and while Jack Smith might rescue this indictment with a focus on the effort to create fake elector certificates, Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.

Jack Smith did things (describing that Trump was in his private Dining Room, not the Oval Office, noting that he sent the threatening Tweet with no assistance, labeling the rally a privately-funded speech, labeling Trump and Pence as candidates) that increase his chances of overcoming the presumption of immunity that John Roberts invented. But a number of judges (and some juries) are going to have to buy that a handful of members of the mob stormed the Capitol, and especially the Senate, with the intent of making it impossible to count vote for Joe Biden.

Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).

DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.

They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.

If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.

If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.

Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.

But doing so would clarify the absurdity of such a ruling.

Correction: Kyle Cheney reports that this is a grand jury seated last year. It has indicted other Jan6ers and so could do any 1512 indictments that require superseding.

As I predicted in this post, Jack Smith did not wait around for a dispute before Tanya Chutkan to talk about which allegations in the January 6 indictment against Trump are and are not official acts. He superseded the existing indictment.

But Smith took the “pared down” approach NYT’s Alan Feuer imagined: The indictment takes out all reference to Jeffrey Clark. It emphasizes throughout that Trump worked with private individuals to try to steal the election.

That said, it does keep the Mike Pence allegations in the indictment, emphasizing that those actions were exclusively about remaining in power.

Update: In his notice regarding this superseding indictment, Smith emphasized that he used an entirely new grand jury. He would have had to do that anyway — the one he had used previously expired last summer, probably over a year ago.

Today, a federal grand jury in the District of Columbia returned a superseding indictment, ECF No. 226, charging the defendant with the same criminal offenses that were charged in the original indictment. The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States, 144 S. Ct. 2312 (2024). The Government does not oppose waiver of the defendant’s appearance for arraignment on the superseding indictment. See Fed. R. Crim. P. 10(b). As this Court directed, ECF No. 197, the Government will confer with the defense and make a joint proposal, to the extent possible, regarding pretrial litigation in the status report due Friday.

But the mention of “pretrial litigation” suggests he wants to pick up where he left off.

Update: Here are the parts of my post from Saturday explaining what the logic here would be.

Now, as I suggested, even if you were doing nothing more than removing the Jeffrey Clark references, doing so would be smart in any case. Not only could Smith excise all the Jeffrey Clark materials, thereby giving Trump less surface area to attack the indictment, but he could tweak what is already there to address some of the other concerns raised by SCOTUS, for example, to clarify how candidate Trump’s reliance on fake elector certificates do not threaten Executive authorities. But minor tweaks, even the excision of the Jeffrey Clark stuff, would not require consultation with DOJ, and if Jack Smith were just excising the Jeffrey Clark stuff, he could have done that before DOJ’s election prohibition on indictments kicks in on roughly September 1.

So let’s talk about what would require consultation with DOJ, consultation requiring two full months from the immunity ruling, because it raises ways that Smith might supersede the indictment that would be a lot more interesting than simply excising the Clark stuff:

• Consultation with the Solicitor General’s office regarding edge cases on official acts
• Consultation with DC USAO on how to apply obstruction more generally

[snip]

Consultation with the Solicitor General’s office regarding edge cases on official acts: First, and least controversially, DOJ would consult with the Solicitor General’s office regarding any more difficult issues regarding official acts. Perhaps the most obvious of these — and one squarely raised in SCOTUS’ ruling — is the status of Mike Pence in conversations about certifying the electoral certificates. If Pence was acting exclusively in his role as President of the Senate, then Trump’s relationship to him would be as a candidate, and so under Blassingame, an unofficial act. But the Republicans on SCOTUS want to argue that some of these conversations were official acts, making Pence’s testimony inadmissible under their order. If DOJ is superseding an indictment to excise the things that need to be excised, DOJ would want the Solicitor General involved in such decisions not just because they’ll have to defend whatever stance Jack Smith adopts, but also so as to protect the equities of the Executive Branch, which DOJ traditionally guards jealously.

Consultation with DC USAO on how to apply obstruction more generally: More interestingly (and as I focused on here), if Jack Smith were to supersede the indictment against Trump, he would undoubtedly tweak the language on the two obstruction charges to squarely comply with the Fischer decision limiting it to evidentiary issues.

Since Smith got his extension, DOJ has started weighing in on a handful of crime scene cases where (unlike around 60 others) it thinks it can sustain obstruction charges under a theory that the defendant knew the import of the electoral certifications themselves and took steps to obstruct the actual counting of them.

[snip]

DOJ is making the effort of trying to sustain the obstruction charges for defendants who can’t be charged with one of several other felonies (obstructing the cops or rioting), but whose conduct — DOJ believes — should still be a felony. They’re going to have to do this with some members of the two militia conspiracies, the felony convictions on which are often the primary felonies (though DOJ used the obstruction of cops with them too).

It’s fairly easy to see how this effort has to harmonize with however Smith revamps the obstruction charges against Trump. And given the evidence that Smith was moving to include the Proud Boys in Trump’s case, that harmonization may be key to sustaining obstruction charges against the Proud Boys.

The other parts — on if Smith decided to add new charges — aren’t relevant here.

I don’t think that even the outlets that recognize the troll are giving the Kamala Harris campaign enough credit for the jujitsu they’re engaged in with the debate. Before I explain why, though, here’s a video of Barack Obama’s skewering of Donald Trump at the White House Correspondents’ Dinner in 2011. It provides a useful reminder of the kinds of things that scar a racist narcissist like Trump.

The jujitsu on the debate started with Trump whining, two nights ago, about ABC as an excuse to get out of the debate again.

Early the next morning, Politico was the first to report an actual substantive dispute about the debate: whether the candidates’ mics would be on between questions or not. In the story, Jason Miller got an unsurprising dig suggesting that, Kamala “isn’t smart enough to repeat the messaging points her handlers want her to memorize.”

But before that in the story, this Brian Fallon quote appeared.

“We have told ABC and other networks seeking to host a possible October debate that we believe both candidates’ mics should be live throughout the full broadcast,” Brian Fallon, the Harris campaign’s senior adviser for communications, tells POLITICO. “Our understanding is that Trump’s handlers prefer the muted microphone because they don’t think their candidate can act presidential for 90 minutes on his own. We suspect Trump’s team has not even told their boss about this dispute because it would be too embarrassing to admit they don’t think he can handle himself against Vice President Harris without the benefit of a mute button.”

It was followed by this unattributed quote, digging into Trump’s self-control issues even further.

“She’s more than happy to have exchanges with him if he tries to interrupt her,” one person familiar with the negotiations tells Playbook. “And given how shook he seems by her, he’s very prone to having intemperate outbursts and … I think the campaign would want viewers to hear [that].”

Remember that unattributed quotes often come from people who are otherwise quoted in a piece. Remember, too, that Brian Fallon was Hillary’s spokesperson in 2016.

Fallon has a long history of dealing with Donald Trump.

Fallon’s suggestion that Trump has no impulse control was bound to elicit the only kind of response that horserace campaign journalists can muster: a badgering question to the candidate about a dig the opponent made. And sure enough it did. At a campaign stop, someone asked him about it, and Trump said that, “We agreed to the same rules — I don’t know. It doesn’t matter to me. I’d rather have it probably on, but the agreement was that it would be the same.”

Having elicited a question that got Trump to admit he would prefer to have a live mic, Fallon immediately declared victory.

Then, someone in charge of Trump’s Truth Social account has released content that conflicts with what Trump said publicly, when none of his handlers could prevent it.

If Trump would prefer a hot mic, then why is Trump’s curated Truth Social account complaining that Harris would prefer that too? Fallon has now created the appearance that Trump’s handlers like Jason Miller believe Trump can’t avoid some kind of meltdown during the debate.

Has Trump been using the N-word behind closed doors to refer to Kamala, or only “bitch”?

Then Kamala’s campaign released a video showing clips showing Trump questioning whether he should debate, with chicken noises in the background.

Whatever happens with the scheduled debate now, Fallon has imposed a cost on Trump’s equivocations, making it more likely he’ll have the meltdown he and his handlers are trying to stave off.

It is absolutely true that Kamala is trying to change the terms of the agreement, even as Trump gets cold feet about participating at all. But this arises, I think, out of the dynamic that has made it so hard for Trump to face Kamala in the first place. He can’t suppress his bigotry, but if he doesn’t, he’ll risk losing to a Black woman. A smart, beautiful Black woman.

There’s a Beltway story that that moment in 2011, when the first Black president used Donald Trump’s racist birther campaign to humiliate the reality TV star in front of the entire press corps, was the moment Trump decided he needed to be President. Whether or not that’s true, it’s fairly clear that kind of public humiliation by a Black person triggers Trump in a way other things might not. Trump’s narcissism requires him to maintain the appearance of superiority over everyone else; his racism makes it even more important that that perceived superiority extends to Black people.

And even if the WHCP did convince Trump to run, after considering it, he didn’t run in 2012, when he would have faced Obama. Donald Trump chose not to risk losing to Obama.

Now, because of a decision Joe Biden made, Donald Trump has lost the ability to choose whether he wants to face someone like Kamala Harris. And he’s stuck: The thing his MAGAts like about him is his spontaneous riffs, many of which rely on the humiliation of others. But if he calls the Vice President the N-word or bitch publicly, it’ll further sink him in the polls.

At least from the moment that Kamala started to put on campaign events that Trump would love to pull off, the campaign has been damaging Trump’s ego. Undoubtedly Michelle and Barack Obama (among others) made that worse at the DNC. And all that makes some outburst that could doom his campaign more likely.

At 8:06PM on January 4, 2021, shortly after the arrest of Enrique Tarrio, a Proud Boy named Travis instructed everyone on the Proud Boys’ Ministry of Self Defense Telegram list to “nuke everything.”

Because of the way Telegram persists on individual phones, it didn’t work. Two years later, that text was introduced as evidence against the Proud Boys to show that already on January 4, they knew they had something to hide.

Four days later, on the Ministry of Self Defense list that had replaced the first one, Aaron of the Bloody East — a senior Proud Boy in Philadelphia — announced the arrest of Proud Boy Nicholas Ochs as he landed in Hawaii (the avatars for the Proud Boys were added for the trial exhibit; only the monikers and user numbers came from Telegram itself). The conversation immediately turned to deleting two channels used to organize the Proud Boys during January 6. But because Jeremy Bertino, who had set up the chat, had already left it, the men once again struggled to cover their tracks.

Organizing on Telegram did not prevent the government from prosecuting the Proud Boys for their roles in January 6. On the contrary, those chats — complete with their boisterous efforts to delete them after every arrest — were a central part of the evidence used to prosecute Enrique Tarrio, Joe Biggs, and Ethan Nordean on sedition charges, with help from Bertino, who had flipped and who continues to cooperate in the investigation.

It started no later than Nordean’s own arrest on February 3, 2021, when Nordean’s spouse provided the FBI with the passcode to his phone, where many of these texts were still available. It continued as the FBI acquired one after another of the Proud Boys’ phones (one of the only known exceptions was Joe Biggs, whose phone the FBI never got).

A letter to Zach Rehl’s attorney from 2022 gives a sense of how the FBI had to exploit as many phones as they could, one after another, because the set of texts still available on any individual’s phone varied. Some people, like Nordean, were successful at deleting their voice notes and other attachments. Others didn’t even try.

Altogether, DOJ relied on at least 11 separate lists, as well as a slew of individual Telegram texts (as well as a number of Parler texts), at trial. In that sense, the investigation of the Proud Boys was little different than that of the Oath Keepers, who used Signal rather than Telegram for that kind of organization.

That’s important background to news of the French arrest of Pavel Durov on charges implicating (at least) child sexual exploitation, terrorism, cybersecurity, fraud, and organized crime. Authorities can still prosecute people who use Telegram to plan and organize their crimes.

But there are impediments. The cops took Tarrio’s phone when they arrested him — with those damning Telegram threads still on it — two days before the Proud Boys would lead a mob that attacked the Capitol. But it took over a year before they cracked the encryption on his phone, exploited it, and did a privilege review. Even after seizing Tarrio’s phone, then, prosecutors couldn’t prevent January 6 having decided that Tarrio posed a risk to the certification of the vote only days before the attack.

It might have been different if the Proud Boys had been considered a terrorist group (which it still is not, in significant part because of an asymmetry in US law regarding domestic and foreign extremist groups). Contrary to what a lot of coverage is reporting, the vast majority of Telegram usage is not encrypted. As far as I’m aware, none of the texts introduced at the Proud Boy trials were protected by Telegram’s hard to use encryption, not even the private texts in which Tarrio told one after another of his girlfriends of his imminent arrest.

But the encryption itself would not have saved him. On December 18, 2020 DC cop Shane Lamond did turn on Telegram’s encryption in texts he was exchanging with Tarrio, warning him about both the investigation into his role in burning a BLM flag (the crime for which Tarrio would be arrested on January 4), as well as observations about public Proud Boys statements in advance of January 6.

To contact Tarrio, the Defendant used a chat on Telegram with the highest level of encryption available. The Defendant then asked Tarrio if he had called in the anonymous tip. Tarrio responded “I did more than that. It’s on my social media.” The Defendant told Tarrio “I’m curious to see what happens too. I will check with our CID [Criminal Investigations Division] people if they have you on video.”

But those were still available on the phones after the fact.

Even after Lamond and Tarrio set Telegram to auto-delete messages, Telegram’s functionality didn’t entirely save them.

On December 22, 2020, approximately two minutes after Tarrio sent the Defendant a screenshot of a message he received from an MPD detective assigned to the BLM Banner Burning Investigation through Telegram, the Defendant changed the settings of his encrypted chat with Tarrio on Telegram so that future messages would delete 5 seconds after the recipient opened them.

Some of their auto-delete texts were reconstructed, especially those sent after Tarrio’s pre-trial release on the DC case.

And after Lamond called Tarrio using Telegram to warn him about the warrant for his arrest, Tarrio went to the Ministry of Self Defense thread — the same one the Proud Boys failed to delete after his arrest — and told them that his contact had just warned him of the arrest. There are texts between Lamond and Tarrio, especially from January 1 and 4, which were lost to law enforcement. But enough of their texts were preserved to substantiate obstruction charges on which Lamond will go to trial in October.

The encryption didn’t save Shane Lamond. It would probably do little for intelligence targets either — in part because the encryption may not be all that great, but also because a determined spook is going to get texts via the phones, just like the FBI did with Lamond. France certainly has the intelligence capabilities to defeat Telegram’s encryption, as does the US, both of which would be happy to share with Ukraine.

Rather, one of France’s reported complaints is that Telegram won’t cooperate with law enforcement requests. Even though all these threads via which the Proud Boys planned January 6 and the texts sent between the allegedly corrupt cop Lamond and Tarrio before December 18 were likely readily available on Telegram’s servers, even if the FBI had asked after Tarrio’s arrest, Telegram wouldn’t have provided them, at least not without a whole bunch of squawking. That also means that Telegram wouldn’t provide a whole bunch of other information that proves useful to solving crimes. In the Proud Boys case, because prosecutors couldn’t get metadata directly from Telegram, it likely required cooperating witnesses like Bertino to attribute the handles used by some of the Proud Boys to specific users (at the time, Signal did not yet have this capability, so investigators could more easily match phone numbers to users).

By comparison, prosecutors could and did serve preservation orders on Google and Facebook, which preserved a lot but by no means all relevant content, even as individual users were trying to cover their tracks just like the Proud Boys were. In response to legal process, those platforms, as well as Twitter and others (but not Signal, which doesn’t keep most of this data), provided user data, address, credit card data, and access times.

But it’s the issue of prevention for which Telegram poses the biggest concern. Telegram is the platform of choice for extremists of all ideologies, both for broadcast messaging and for more discreet threads like the ones the Proud Boys used. And in quick moving situations, like the extremist mobilization in the wake of the Southport stabbing in the UK, Telegram channels can grow to include tens of thousands before they’re even discovered. While Telegram took the rare step, in that case, of shutting down the most violent channels tied to British riots, it left many of them up.

It’s still too early to know the scope of the French investigation, beyond that it implicates both non-cooperation and slow moderation. It’s a complaint both that Telegram won’t provide information to solve crimes already committed and won’t take steps to prevent them from happening.

Two of the most important questions are whether Durov derives a material benefit from letting crime and extremism flourish on Telegram. Another is whether Durov gives the Russian government preferential access to all the channels that are otherwise difficult to access. This post provides a sense of the degree to which Durov’s likely cooperative relationship with Russia conflicts with his public claims of animosity.

There are a lot of people claiming that France is targeting Durov because Telegram is an encrypted messaging platform. While that may be a factor, the far more important one is that Telegram allows crime to flourish on its platform, and until he arrived in France, where his French citizenship will actually help France thwart any Russian attempts to help him, he was protected by regimes that similarly preferred to let certain kinds of noxious content to thrive.

Update: The French have released the possible charges. There is one charge of refusing to cooperation in criminal investigations.

They include six charges of “complicité,” what I guess is the US equivalent to aid and abetting:

• Illegal transactions for organized crime
• Child sexual abuse material
• Organized dissemination of CSAM
• Narcotics sales
• Hacking tools
• Organized fraud

Then there are three crimes pertaining to the provision of encryption and importation of encryption without declaration.

The most interesting — and the ones that might make this prosecution akin to those of people like Ross Ulbricht — are:

• Association with criminals with the intent to commit crimes punishable by 5 years
• Money laundering

I noted above that one of the big questions is whether Durov derives a material benefit from letting crime flourish on Telegram. If he’s personally involved in money laundering, he may.

Note, none of the crimes suggest an unlawful relationship with Russia (though some of those encryption crimes may originally have been targeted towards spooks).

On Friday, first Bloomberg (Yahoo version), then NYT reported that Jack Smith “has decided against seeking a major hearing” to address which of the allegations charged against Donald Trump were official versus unofficial acts. Here’s Bloomberg:

Special Counsel Jack Smith has decided against seeking a major hearing to present evidence in the election-interference case against Donald Trump before voters go to the polls Nov. 5, according to people familiar with the matter.

The move means that it’s unlikely a so-called mini-trial, which would include evidence and testimony from possible blockbuster witnesses like former Vice President Mike Pence, would take place before the presidential election.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president. If Trump wins the election, the case would collapse as the Justice Department has a policy against prosecuting sitting presidents. Trump could also order the department to throw it out.

Instead, Smith and his team are carefully revising the case against Trump, according to the people familiar, who asked not to be named discussing a confidential matter. [my emphasis]

The emphasis here was on a supposed “win” for Trump’s lawyers, though they haven’t actually done anything to get that win. They haven’t filed a brief, they haven’t made any formal requests. This is a “win” that they did nothing — at least, nothing since SCOTUS rewrote the Constitution for Trump — to earn. Though the piece is right: If Trump wins the election, it seems impossible that this prosecution will lead anywhere, and Smith’s reported decision not to ask to explain the charges in more detail makes it less likely that such a mini-trial could have a bearing on whether Trump does win or not. (While Bloomberg states that “Trump’s lawyers didn’t immediately respond to a request for comment,” that description doesn’t rule out that this story was sourced to someone close to Trump, and the story does cite Trump’s spox, who seems to have just ranted about witch hunts.)

The NYT provides a better sense of whence the hopes for a mini-trial before the election came — from outside commentators (probably including me), not from anything Smith had officially said — which is important to making sense of this development.

Still, the ruling left open the possibility that Mr. Smith’s prosecutors could use a public hearing to air some of the evidence they had collected against the former president before Election Day. Several legal experts and commentators seized on the idea, saying that a hearing like that would almost resemble the trial itself — albeit without the finality of a jury verdict.

And yet such a proceeding was always going to be fraught with complications — not least if it ended up being held in the homestretch of an election in which Mr. Trump is seeking to return to the White House.

Neither of these stories mentions the last official thing we did hear from Jack Smith: that his team needed an extra three weeks, from August 9 to August 30, to consult with other DOJ components, as required by Special Counsel regulations.

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.

So two weeks before these stories, Jack Smith said, we need more time to talk to other people at DOJ to decide our “position on the most appropriate schedule … to brief issues,” though, as I noted here, Special Counsel regulations would not technically require consultation about the timing of hearings or briefs regarding the case in its current posture, especially given Jack Smith’s past representations that DOJ guidelines on elections would not have prohibited holding an actual trial in the pre-election period. And then, in the two weeks since, “people familiar with the matter” have decided, heard, or learned that the most appropriate schedule does not include a mini-trial, which is not something that Smith had ever publicly considered in the first place.

And neither of these stories fully address that, in most circumstances, this would not be Smith’s decision to make. Bloomberg says, “Chutkan could overrule Smith and order a major hearing prior to the election.” NYT describes that, “Judge Chutkan could in theory still order such a hearing to be held.” NYT does walk through the range of alternatives to do what SCOTUS ordered, that is, to sort through which parts of the indictment are official acts and which are not. But, in most circumstances, it was never Smith’s position to demand a public hearing, and nothing he ever said indicated he intended to do so. The goal of a mini-trial, as NYT reported, came from outside commentators.

There is one circumstance, however, where Judge Tanya Chutkan would not have a chance to weigh in. And it is one circumstance that is alluded to by both of these pieces, without addressing its potential implications. NYT states that prosecutors might seek what it assumes would be a pared-down indictment.

The prosecutors could also seek to bring a new, pared-down indictment against Mr. Trump focusing on charges they believed arose from acts undertaken in his private role as a candidate for office, not in his official role as president.

Bloomberg cites (and includes in its subhead) that prosecutors “are carefully revising the case.”

You can’t change a word in that indictment — you can’t take out all references to Jeffrey Clark’s role in subverting the election, the one thing SCOTUS said has to happen — without going back to a grand jury and superseding the original indictment. But even just doing that would put Jack Smith in the driver’s seat, effectively giving him the first shot at drafting what should and shouldn’t be included among unofficial acts that constitute crimes.

If Jack Smith is really doing what Bloomberg says — revising the case — then they have decided that they will supersede the indictment.

Now, as I suggested, even if you were doing nothing more than removing the Jeffrey Clark references, doing so would be smart in any case. Not only could Smith excise all the Jeffrey Clark materials, thereby giving Trump less surface area to attack the indictment, but he could tweak what is already there to address some of the other concerns raised by SCOTUS, for example, to clarify how candidate Trump’s reliance on fake elector certificates do not threaten Executive authorities. But minor tweaks, even the excision of the Jeffrey Clark stuff, would not require consultation with DOJ, and if Jack Smith were just excising the Jeffrey Clark stuff, he could have done that before DOJ’s election prohibition on indictments kicks in on roughly September 1.

So let’s talk about what would require consultation with DOJ, consultation requiring two full months from the immunity ruling, because it raises ways that Smith might supersede the indictment that would be a lot more interesting than simply excising the Clark stuff:

• Consultation with the Solicitor General’s office regarding edge cases on official acts
• Consultation with DC USAO on how to apply obstruction more generally
• Approval from Merrick Garland for new types of charges against Trump on January 6 actions
• Approval from Merrick Garland for charges pertaining to January 6 aftermath

Consultation with the Solicitor General’s office regarding edge cases on official acts: First, and least controversially, DOJ would consult with the Solicitor General’s office regarding any more difficult issues regarding official acts. Perhaps the most obvious of these — and one squarely raised in SCOTUS’ ruling — is the status of Mike Pence in conversations about certifying the electoral certificates. If Pence was acting exclusively in his role as President of the Senate, then Trump’s relationship to him would be as a candidate, and so under Blassingame, an unofficial act. But the Republicans on SCOTUS want to argue that some of these conversations were official acts, making Pence’s testimony inadmissible under their order. If DOJ is superseding an indictment to excise the things that need to be excised, DOJ would want the Solicitor General involved in such decisions not just because they’ll have to defend whatever stance Jack Smith adopts, but also so as to protect the equities of the Executive Branch, which DOJ traditionally guards jealously.

Consultation with DC USAO on how to apply obstruction more generally: More interestingly (and as I focused on here), if Jack Smith were to supersede the indictment against Trump, he would undoubtedly tweak the language on the two obstruction charges to squarely comply with the Fischer decision limiting it to evidentiary issues.

Since Smith got his extension, DOJ has started weighing in on a handful of crime scene cases where (unlike around 60 others) it thinks it can sustain obstruction charges under a theory that the defendant knew the import of the electoral certifications themselves and took steps to obstruct the actual counting of them.

Here’s what such an argument looks like in the case of Matt Loganbill:

At the time Fischer was decided, approximately 259 cases of the over 1,400 cases charged in the January 6 prosecution involved the application of §1512(c)(2). Some of the 259 cases were convictions at trial, while others were convictions through pleas. Some of those are currently pending trial, whereas other defendants have served their sentences of incarceration fully. As a result of Fischer, the government has endeavored to review cases – particularly those cases pending appeal, pending trial, or actively serving a sentence – in a timely and responsive fashion. Of those original 259 cases, the government has, as of the date of this filing, sought to forgo application of §1512(c)(2) – either post-conviction, pending appeal, or pending trial, in over 60 cases.5 The government continues to evaluate and/or litigate §1512(c)(2) in a variety of contexts. In this case, after a careful analysis of the Fischer opinion, the government contends that the defendant violated the statute and intends to proceed with the charge.

[snip]

• On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
• On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
• On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
• On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started

5 The government’s decision to forgo charges should not be read as a concession that the defendant’s conduct does not meet the test as articulated by Fischer. Rather, we are evaluating the facts on a case-by-case basis, including whether the defendant committed other felonies, whether the criminal penalties of other applicable crimes sufficiently serves the goals of 18 U.S.C. § 3553(a), and whether additional litigation is warranted. This process is appropriately time-consuming.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

DOJ is making the effort of trying to sustain the obstruction charges for defendants who can’t be charged with one of several other felonies (obstructing the cops or rioting), but whose conduct — DOJ believes — should still be a felony. They’re going to have to do this with some members of the two militia conspiracies, the felony convictions on which are often the primary felonies (though DOJ used the obstruction of cops with them too).

It’s fairly easy to see how this effort has to harmonize with however Smith revamps the obstruction charges against Trump. And given the evidence that Smith was moving to include the Proud Boys in Trump’s case, that harmonization may be key to sustaining obstruction charges against the Proud Boys.

Approval from Merrick Garland for new types of charges against Trump on January 6 actions: In my last post, I also suggested that Jack Smith could be considering adding insurrection charges against Trump. I argued that the three opinions protecting Trump — Immunity, Fischer, and Colorado — squarely permit such a charge. Notably, the immunity ruling said that acquittal on a charge, like the insurrection charge on which Trump was impeached, does not prohibit criminal charges for the same crime. And the Colorado decision noted that insurrection remains good law. If Smith decided he wanted to do this, it would require approval from Garland. I consider it an unlikely move (not least because some of the evidence to prove it would still be inadmissible under the immunity decision). So go read my earlier post for more on this.

Approval from Merrick Garland for charges pertaining to January 6 aftermath: By design, SCOTUS has made it really hard to prove the case against Trump, because it requires Jack Smith to successfully argue that Trump’s own speech — even his Tweets!! — are unofficial acts, when SCOTUS has made them presumptively official. Smith would not face the same difficulty for his speech as a private citizen. And a significant swath of the known investigation actually pertained to things Trump did after he left office: That investigating how he used donations made in the name of election integrity to do things entirely unrelated. It’s unclear why Smith dropped that side of his investigation, but it’s something that would face fewer of the challenges created by the immunity ruling.

Similarly, Smith had already asked to use statements Trump made after the period of the charged conspiracies (which go through January 7 or January 20) to threaten those who debunked his voter fraud claims.

In apparent response [to January 6 Committee testimony], the defendant then doubled down and recommenced his attacks on the election workers in posts on Truth Social. He even zeroed in on one of the election workers, falsely writing that she was an election fraudster, a liar, and one of the “treacher[ous] . . . monsters” who stole the country, and that she would be in legal trouble.

The Government will introduce such evidence to further establish the defendant and his co-conspirators’ plan of silencing, and intent to silence, those who spoke out against the defendant’s false election fraud claims; the defendant’s knowledge that his public attacks on officials—like those on his Vice President as described in the indictment—could foreseeably lead to threats, harassment, and violence; and the defendant’s repeated choice to attack individuals with full knowledge of this effect. It also constitutes after-the-fact corroboration of the defendant’s intent, because even after it was incontrovertibly clear that the defendant’s public false claims targeting individuals caused them harassment and threats, the defendant persisted—meaning that the jury may properly infer that he intended that result. Finally, evidence of the defendant’s encouragement of violence and the consequences of his public attacks is admissible to allow the jury to consider the credibility and motives of witnesses who may be the continuing victims of the defendant’s attacks.

Smith also asked to introduce evidence of Trump ratifying the violence of and promising to pardon those who engaged in it, other statements after he left office that would not be entitled to any immunity.

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. Similarly, the defendant has chosen to publicly and vocally support the “January 6 Choir,” a group of defendants held at the District of Columbia jail, many of whose criminal history and/or crimes on January 6 were so violent that their pretrial release would pose a danger to the public. The defendant nonetheless has financially supported and celebrated these offenders—many of whom assaulted law enforcement on January 6—by promoting and playing their recording of the National Anthem at political rallies and calling them “hostages.”

Any crimes that focus on things Trump has done since he left office to undermine democracy would not be entitled to any immunity.

In a presser the other day, Garland pointed to the number of prosecutions DOJ has pursued for January 6, arguing that the prosecutions have “shown to everybody how seriously we take an effort to interfere with the peaceful transfer of power: The last January 6, the coming January 6, and every January 6 after that.” Charging Trump for his continued efforts to undermine democracy would be one way to do that.

I’m not sure if Smith believes he could prove that these constituted crimes. But if he does, he would need Merrick Garland’s approval to charge them.

All that said, there’s the issue of timing. Usually, when DOJ is considering superseding someone, they tell defense attorneys. So I had been wondering, given Trump’s recent rumpiness, whether DOJ had indicated they would. If last week’s stories were sourced to people close to Trump, as opposed to people in DOJ, then it would seem Smith did not do that.

Which gets to another thing Jack Smith would have to consult on: If he were to supersede, when he could do that. And while he would have one more week to roll out an indictment to avoid DOJ’s pre-election deadlines, I think in this case, Garland likely would require Smith to hold off a superseding indictment itself until after the election.

We’ll learn more on Friday. But it’s possible we’ll learn that DOJ intends to supersede the indictment after the election, meaning everything would halt until then.

Update: Tweaked what I meant by Tweets being official or unofficial speech.