You have a choice.

You can spend the next few weeks laying the groundwork for making a big stink about the fact that the aspiring FBI Director tried to help Trump steal classified documents.

Or you can spend it clinging to false claims about Merrick Garland so you can blame him for the fact that Trump won reelection rather than blaming the guy directly responsible for preventing a trial (and the guy who’ll remain responsible for Trump’s license going forward), John Roberts, to say nothing of the failed Democratic consultants and voters themselves.

Sadly, Democrats and lefties — from random people on Bluesky to TV lawyers to the President himself — are choosing the latter path, the path that will guarantee they remain maximally ineffective.

They’re rolling out all the tired false claims: Merrick Garland waited before investigating people close to Trump, they claim. According to NYT, Garland approved an effort to follow the money in his first meeting with prosecutors — an effort that turned out to be a dry hole, but nevertheless was precisely the approach that people like Sheldon Whitehouse and Andrew Weissmann demanded.

After being sworn in as attorney general in March 2021, Merrick B. Garland gathered his closest aides to discuss a topic too sensitive to broach in bigger groups: the possibility that evidence from the far-ranging Jan. 6 investigation could quickly lead to former President Donald J. Trump and his inner circle.

At the time, some in the Justice Department were pushing for the chance to look at ties between pro-Trump rioters who assaulted the Capitol on Jan. 6, 2021, his allies who had camped out at the Willard Hotel, and possibly Mr. Trump himself.

Mr. Garland said he would place no restrictions on their work, even if the “evidence leads to Trump,” according to people with knowledge of several conversations held over his first months in office.

“Follow the connective tissue upward,” said Mr. Garland, adding a directive that would eventually lead to a dead end: “Follow the money.”

In June 2021, they focused on the Willard, precisely the people everyone wanted investigated.

In late June, Mr. Garland, Ms. Monaco and several aides decided they needed to take a dramatic step: creating an independent team, separate from Mr. Cooney’s original group, tasked with investigating the Willard plotters, with no restriction on moving up the ladder to Mr. Trump if the evidence justified it.

They did not want too many people knowing about it. So they gave it a vanilla name: the “Investigations Unit.”

NYT misses — as everyone else has, too — one of the most opportunistic things DOJ did to accelerate the investigation. It used the existing warrant for Rudy’s devices obtained on Lisa Monaco’s first day on the job, April 21, 2021, to do a privilege review of the January 6 content at the same time. The Special Master prioritized the phone Rudy used on January 6 — 1b05A, which appears throughout Rudy’s privilege log for January 6 related material — and started turning over that material to DOJ starting on November 11, 2021. That effort yielded at least one key document that shows up in Trump’s January 6 indictment but not the January 6 Report, as well as encrypted content not available anywhere else.

DOJ started with Rudy, Co-Conspirator 1, the guy through whom the entire fake elector plot got pitched to Trump, and people are whining that DOJ didn’t start at the top of the conspiracy. They did. You just didn’t notice.

Those are not the only things DOJ was doing in 2021. The plodding DOJ IG started investigating Jeffrey Clark on January 25, 2021. DOJ appears to have figured out a way to solve a difficult problem — how to get waivers of Executive Privilege without violating White House contact policies — in July 2021. DOJ sent overt subpoenas pertaining to Co-Conspirator 3, Sidney Powell, in September 2021. DOJ was also working to fill out the encrypted communications the militias exchanged with people like Roger Stone (who first showed up in a court filing in March 2021) and Alex Jones, but it took even longer, over a year, to exploit Enrique Tarrio’s phone, than it did Rudy’s, nine months, and that process necessarily requires working phone by phone.

You can complain that investigations take too much time. You can gripe that investigators did precisely what everyone wanted them to do — follow the money and investigate the Willard. But they were pursuing precisely the angles people were demanding, and long before virtually everyone understands.

That 2021 focus is inconsistent with other conspiracy theories people are floating, too: None of this started until Jack Smith was appointed (or that Jack Smith gave it new life), they say. Nothing happened for two years, they say.

As far as I know, every phone that went into the indictment and immunity brief (which added information from Boris Ephsteyn and Mike Roman’s phone) was seized before Smith’s appointment. The onerous 10-month process of obtaining Executive Privilege waivers for testimony from Trump’s top aides, without which you couldn’t prove that Trump held the murder weapon — the phone used to send a tweet targeting Mike Pence during the riot — started on June 15, 2022, five months before Smith’s appointment. Jack Smith looks prolific to those who don’t know those details, because 10 months of hard work finally came to fruition in the months after he was appointed.

The claim nothing happened for two years? The only major investigative step that happened after the two-year anniversary of Merrick Garland’s confirmation was Mike Pence’s testimony.

The claims people are using to blame Merrick Garland that Trump was reelected — all of them!!! — are easily falsifiable. (I’m happy to entertain arguments that Garland’s grant of Special Counsel status to David Weiss affected the election, but the decision to keep Weiss was one Biden made.) The single possible action from DOJ (likely either Brad Weinsheimer or Public Integrity) that could have created a delay would be pre-election limits on what prosecutors could including the August 2024 superseding indictment. But it’s just as likely that prosecutors believed a narrow superseding indictment was tactically smart.

This is the point, though. This is not about Merrick Garland. I’m happy to criticize him for things he did. I’ve written more critical of his picks and handling of Special Counsels than anyone.

I could give a flying fuck about Merrick Garland.

What I care about is that at a time when we need to start establishing means of accountability for a second Trump term, much of the Democratic world has chosen instead to wallow in false claims about the Trump investigation in order to make Garland a scapegoat, rather than the guy directly responsible, John Roberts. It’s classical conspiracy thinking. Something really bad happened (Trump got elected), it’s not entirely clear why (because almost no one bothers to learn the details I’ve laid out here, to say nothing of considering the political work that didn’t happen to make Trump own this), and so people simply invent explanations. Every time those explanations get debunked, people double down on the theory — it’s Garland’s fault — rather than reconsidering their chosen explanation.

And those explanations have the effect of distracting attention from Roberts. Rather than talking about how six partisan Justices rewrote the Constitution to give the leader of the GOP a pass on egregious crimes, Democrats are choosing to blame a guy who encouraged prosecutors to follow the money in March 2021.

It’s a choice. And it’s a choice that guarantees maximal impotence. It’s a choice that eschews actual facts (and therefore the means to actually learn what happened). It’s a choice that embraces irrational conspiracy thinking (which makes people weak and ripe for manipulation by authoritarians). It’s a choice that distracts from Roberts’ role.

And there is a better, more urgent, option.

We have every reason to believe we’ll get a report from Jack Smith (though I would be unsurprised if Trump tried to enjoin its release). Given David Weiss’ great rush to sentence Alexander Smirnov on January 8, I suspect we’ll get a report from Weiss too. My guess (given Weiss’ January 8 sentencing day) is we may get both reports at the same time — maybe January 10 or so. That’s a wildarse guess.

And so rather than in wallowing in conspiracy theories, Democrats would do well to prepare a messaging plan for those reports.

I expect David Weiss’ report to smear up not just Hunter but also Joe Biden, for pardoning Hunter. I expect he’ll suggest that Kevin Morris’ support of Hunter (a loan Hunter would have had to pay back after the election, but which he had no means to pay) has amounted to a massive campaign contribution to Joe. I wouldn’t even rule out Weiss pushing for Republicans to impeach Biden over that.

I spoke with Harry Litman back in November about what a Jack Smith report might have. Remember, his mandate is to describe both charging decisions (the two indictments he filed) but also declination decisions (the people and crimes he didn’t charge).

That means the report — if Trump doesn’t thwart its release — should answer a lot of questions that have people spun into conspiracy theories. Why didn’t Smith charge all of Trump’s co-conspirators (probably because the Mueller investigation showed how futile it would be to charge anyone before Trump, which the Florida prosecution seems to confirm)? Why didn’t Smith charge any members of Congress (undoubtedly because their actions would be covered by Speech and Debate, as confirmed by a DC Circuit opinion written about the exploitation of Scott Perry’s phone)? It likely will even provide more fulsome descriptions of the documents Trump refused to give back.

But there are three possible or likely aspects to the report that may become important for the confirmation of Trump’s appointees (which is one reason he might try to enjoin the release) and the pardons he plans shortly thereafter.

First, prosecutors had investigated how Trump used money raised on a promise to spend on election integrity to instead pay everyone off. That’s how he paid Deputy Attorney General nominee Todd Blanche, Solicitor General nominee John Sauer, and PADAG Emil Bove (Bove does not need Senate confirmation). Trump’s incoming Chief of Staff (who also does not need Senate confirmation), Susie Wiles, managed much of that process. DOJ did not charge this scheme, but we may get an explanation for what it entailed and why Smith didn’t charge it. While Blanche, et al, have no legal exposure themselves in the way Trump paid them, if we learned more about it, it would further highlight the wildly inappropriate conflicts all these men would have in running DOJ. That is, there’s the distinct possibility that a report would provide tangible explanation for why Blanche and Sauer have grave conflicts.

Far more important is the point I made here. FBI Director nominee Kash Patel may figure in both sides of Jack Smith’s report, the January 6 and the documents side. With Christopher Miller, Kash engaged in what Barry Loudermilk treated as insubordination by refusing Trump’s order to get him 10,000 troops for January 6; this post talked about how that might be a more productive way to make Loudermilk’s Liz Cheney referral a problem for Kash. That’s a way to raise distrust of Kash among Republicans.

But Kash’s involvement in the other side of the investigation (which appears at 19:00 in the video above) is more important. A key prong of the investigation into Trump’s treatment of the documents found at Mar-a-Lago involve disproving Kash’s public claim — made just before DOJ subpoenaed the documents — that Trump had declassified everything.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

Someone whose potty mouth resembles Eric Herschmann (Person 16) debunked this claim just before Patel (Person 24) testified.

What Kash said in his immunized November 2022 testimony didn’t show up in either of the Florida indictments (and we only got reports of what he thought he’d say beforehand). We don’t know whether he backed off his unsworn comments. We don’t know whether he gave testimony debunked by five other people. We don’t know how much Kash had to say about efforts to take the Crossfire Hurricane binder home.

But all that is highly likely to show up in a report.

If we get the report, it is highly likely that we’ll get evidence that the aspiring FBI Director lied to help Trump take classified documents home from the White House.

If we get the report, it is highly likely that, shortly before his confirmation process, we’ll get evidence that the aspiring FBI Director helped Trump commit a crime.

Now, the Republicans don’t care. That’s not going to affect their willingness to rubber stamp Kash’s nomination. But if Democrats do their job well, then they can use this information to dramatically raise the costs of the Kash confirmation.

Or Democrats can continue to wallow in conspiracy theories about Merrick Garland.

Finally, I think it highly like a report — if we get one — will talk about how Trump’s call to the rally motivated certain key rioters to conspire to obstruct the election. We’ll learn about how his exhortation to Stand Back and Stand By had an immediate effect on Proud Boy membership. We’re likely to learn about how Danny Rodriguez immediately responded to Trump’s targeting of Mike Pence in his January 6 speech to make slitting motion at his throat, naming Joe Biden, and then proceeded to almost murder Michael Fanone, pretty close to meeting the Brandenberg definition of incitement. We’re likely to learn how the guys who helped breach the East door, then broke into the Senate gallery, then rappelled down to the Senate floor and let others in believed that Trump ordered them to come to DC on December 19, 2020. Trump has been desperate to prevent just this evidence from being submitted at trial.

But it will also raise the stakes of his pardons. If this information comes out, then it will make it clear that Trump isn’t just pardoning his fans, he’s pardoning people who believed they were responding to his orders to attack Congress.

Democrats can spend the time between now and confirmation hearings making ever-evolving conspiracy theories about Merrick Garland, something that makes them as weak as possible, something that makes them more susceptible to authoritarian manipulation.

Or they can spend the time making it clear just how corrupt Trump’s appointments and pardons are.

Democrats seem to be struggling even to chew gum without faceplanting. They can’t do both.

It’s just my opinion. But I think Democrats would be far better served focusing on the facts that we do know from the twin investigations of Trump rather than inventing false claims about why they didn’t go to trial. This is the work Democrats didn’t do in 2023, when Trump was making unchallenged false claims that these investigations were witch hunts. The failure to do that work is a more direct explanation why the indictments didn’t disqualify him with voters than anything Merrick Garland did or didn’t do. And until Democrats do this work, they’ll be politically sunk.

Jeff Bezos doesn’t tweet much.

On July 14, he proclaimed that, “Our former President showed tremendous grace and courage” after being shot.

On November 6, shortly after spiking a WaPo editorial describing how unfit Trump is to be President, Bezos congratulated “our 45th and now 47th President on an extraordinary political comeback and decisive victory.”

On November 21, Bezos debunked Elon Musk’s claim that Bezos, “was telling everyone that @realDonaldTrump would lose for sure, so they should sell all their Tesla and SpaceX stock.” “100% not true,” Bezos replied, without noting how Elon had conflated Trump’s success with his own, including the rocket company that directly competes with Bezos’ own spaceship project.

By December 20, Bezos had found common cause with his rival. Both shifting people from the “low productivity” government sector to the “high productivity” private sector and deregulation “results in greatly increased prosperity,” the richest man in the world said. “Both of these are correct and the first is widely under appreciated,” the second richest man replied. Neither clarified whether the “greatly increased prosperity” in question was their own, or that of the people out o f their secure government job.

When Bezos RTed Bill Ackman’s explanation of why a New York Post story claiming” Jeff Bezos to marry fiancée Lauren Sanchez in lavish $600M Aspen wedding next weekend” was not credible. “Unless you are buying each of your guests a house, you can’t spend this much money,” then, it was just his fifth tweet since February.

The owner of the Washington Post engaged in a bit of press criticism in that tweet, apparently denying not just that he’s dropping $600M on a party, but that the party would happen this week at all (I believe the date of the purported wedding has now passed with no wedding).

Furthermore, this whole thing is completely false — none of this is happening. The old adage “don’t believe everything you read” is even more true today than it ever has been. Now lies can get ALL the way around the world before the truth can get its pants on. So be careful out there folks and don’t be gullible.

Will be interesting to see if all the outlets that “covered” and re-reported on this issue a correction when it comes and goes and doesn’t happen.

Bezos — whose rag (according to a Will Lewis interview with Ben Smith) specifically pointed to brainless dick pic sniffing about Hunter Biden that didn’t correct WaPo’s past errors to rebut claims of bias — believed he’d get “corrections” to salacious stories from Daily Mail and NY Post of the kind that made Hunter Biden dick pics A Thing.

Let me state that more clearly. A man whose newspaper chose to respond to political pressure by letting the Daily Mail and NYPost and Fox News serve as assignment editors for his journalists demanded that the Daily Mail and NYPost adhere to a higher standard than the still-uncorrected WaPo.

That’s why I decided to revisit this incident after watching this exchange, about the problems with traditional journalistic efforts to achieve objectivity in the face of asymmetric approaches to truth.

Bezos, of course, tried to explain his decision to intervene in the content of his rag (by spiking the Kamala Harris endorsement) by suggesting WaPo simply isn’t being realistic about perceptions of bias, then adding to perceptions of bias by failing to disclose all the conflicts that might have led him to curry favor with Trump.

In the annual public surveys about trust and reputation, journalists and the media have regularly fallen near the very bottom, often just above Congress. But in this year’s Gallup poll, we have managed to fall below Congress. Our profession is now the least trusted of all. Something we are doing is clearly not working.

[snip]

Likewise with newspapers. We must be accurate, and we must be believed to be accurate. It’s a bitter pill to swallow, but we are failing on the second requirement. Most people believe the media is biased. Anyone who doesn’t see this is paying scant attention to reality, and those who fight reality lose. Reality is an undefeated champion. It would be easy to blame others for our long and continuing fall in credibility (and, therefore, decline in impact), but a victim mentality will not help. Complaining is not a strategy. We must work harder to control what we can control to increase our credibility.

Weeks later, after sucking up to Trump post-election, Bezos’ rag buried news of the unfitness of Trump’s nominees behind 7 pieces on the Hunter Biden pardon.

The continued reliance on dick pic sniffing to convince right wingers the WaPo is not biased is particularly rich [cough] coming from Bezos, newly targeted by gossip from the Daily Mail picked up by NYP.

Bezos, of all people, should have known better than to exploit a guy targeted with revenge porn by hostile nation-states and political partisans. In 2019, the NY Enquirer, while under Non-Prosecution Agreement for its past Kill and Capture activities, tried to extort him with … dick pics. As a Dylan Howard email described when trying to get Bezos to call off an investigation into Saudi ties in all this, the rag that had intervened in 2016 to help elect Trump had ten damning pictures disclosing what was then an affair with Lauren Sanchez while Bezos was still married.

In addition to the “below the belt selfie — otherwise colloquially known as a ‘d*ck pick’” — The Enquirer obtained a further nine images. These include:

· Mr. Bezos face selfie at what appears to be a business meeting.

· Ms. Sanchez response — a photograph of her smoking a cigar in what appears to be a simulated oral sex scene.

· A shirtless Mr. Bezos holding his phone in his left hand — while wearing his wedding ring. He’s wearing either tight black cargo pants or shorts — and his semi-erect manhood is penetrating the zipper of said garment.

When Bezos preemptively exposed that effort (an effort that mysteriously didn’t turn into charges for a violation of National Enquirer’s past NPA), he attributed the attack to his ownership of the WaPo. But, the same guy spiking endorsements of Trump’s opponent and relying on dick pic sniffing to stave off claims of bias said then, his stewardship of the WaPo would remain unswerving.

Here’s a piece of context: My ownership of the Washington Post is a complexifier for me. It’s unavoidable that certain powerful people who experience Washington Post news coverage will wrongly conclude I am their enemy.

President Trump is one of those people, obvious by his many tweets. Also, The Post’s essential and unrelenting coverage of the murder of its columnist Jamal Khashoggi is undoubtedly unpopular in certain circles.

(Even though The Post is a complexifier for me, I do not at all regret my investment. The Post is a critical institution with a critical mission. My stewardship of The Post and my support of its mission, which will remain unswerving, is something I will be most proud of when I’m 90 and reviewing my life, if I’m lucky enough to live that long, regardless of any complexities it creates for me.)

It turns out, as happened the last time someone tried to start a scandal about Bezos’ relationship with Sanchez, the second richest man in the world didn’t have to rely on journalistic ethics to combat the dick pic sniffing.

Both the Daily Mail and the NYP prominently (including in a blurb added to the NYP video, above) added Bezos’ denial to their original stories.

Sources told the DailyMail.com that the billionaire Amazon founder, 60, and his ex-TV news anchor fiancée, 55, had bought out ritzy sushi restaurant Matsuhisa in the Colorado ski town for December 26 or 27, and have their nuptials planned for Saturday 28.

Three sources told DailyMail.com they had been made aware of the Bezos wedding taking place on December 28.

However, after the Daily Mail published the story, Bezos’s team, denied the wedding was going ahead next weekend.

The billionaire took to X on Sunday to slam the wedding claims as ‘completely false’.

‘This whole thing is completely false – none of this is happening,’ he posted on X. ‘The old adage “don’t believe everything you read” is even more true today than it ever has been.’

And by the time I returned to this exchange on Xitter, the link Ackman had RTed had been disabled, as if Xitter had [gasp!] throttled a link to a NYP story!

It didn’t even take the date of the alleged marriage passing for everyone to have cleaned up a story about the second richest man in the world!

Must be nice not to have to rely on corrections.

The problem is so, so much worse than an asymmetric relationship with the truth.

But it has a happy ending for defense contractor Jeff Bezos, whose Blue Origin rocket company was the most obvious hint of payback for his sycophancy, launched yesterday. Bezos posted rocket launch porn on his account at rival rocket man Elon’s site, and accepted the congratulations of numerous people, including his rocket man rival.

We are so beyond the stratosphere of symmetrical relationships to the truth.

You might be forgiven for forgetting that, just over a week ago, Trump’s spox, Karoline Leavitt, issued a statement affirming that Trump — and not Elon Musk — leads the Republican party.

As soon as President Trump released his official stance on the CR, Republicans on Capitol Hill echoed his point of view. President Trump is the leader of the Republican Party. Full stop.

She was trying to sustain the illusion that Trump really did only learn about the contents of the Continuing Resolution that Elon Musk tanked after Elon did, rather than that Elon vetoed a bill Trump had already acquiesced to.

Read Robert Kuttner on the ways that Elon outplayed Trump in the CR negotiations (though I think Elon had several goals, not just to continue doing business in China unimpeded, but also defeating a measure that would have limited his ability to post Deep Fakes of AOC on Xitter).

You might be forgiven for forgetting Leavitt’s thin denial because Trump’s own comments, at Turning Point USA’s latest shindig, were even more striking.

Elon is going to have his DOGE [sic], Trump recommitted. But he’s not going to be President, Trump continued, because he is Constitutionally prohibited.

But I will order federal workers to get back to the office in person or be terminated from the job immediately. And we will create the new Department of Government Efficiency, headed by Elon Musk.

And no, he’s not taking the presidency. I like having smart people. You know, the — they’re on a new kick — Russia, Russia, Russia, Ukraine, Ukraine, Ukraine, all the different hoaxes. And the new one is, President Trump has ceded the presidency to Elon Musk. No, no, that’s not happening. But Elon’s done an amazing job. Isn’t it nice to have smart people that we can rely on, okay? Don’t we want that?

[snip]

But no, he’s not going to be president, that I can tell you. And I’m safe. You know why? He can’t be. He wasn’t born in this country. But the fake news knows that. No, he’s a great guy, and we want to have him, everybody.

Pretty rich [cough] for a guy like Trump to seek refuge in the Constitution.

The next day, Trump put Stephen Miller’s spouse, Katie on DOGE [sic], right alongside naming another billionaire, Stephen Feinberg, to serve as Deputy Secretary of Defense.

We learned during the campaign that the relationship between Stephen Miller and Musk is chummier than we knew, though we still can’t say whether Miller was the one who counseled Musk on bringing “the boss himself, if you’re up for that!” back onto Xitter.

But by picking even the spokesperson for DOGE [sic] — presumably a spox who would like to get paid — Trump provides NGOs like CREW a lever to demand transparency into DOGE [sic] that it is otherwise designed to evade.

It also puts a trusted insider inside.

All that was before the hilarious fight between Laura Loomer and Elon Musk (and Vivek Ramaswamy, who suggested American children don’t have the same work ethic that children of South Asian immigrants do) over H1Bs yesterday. After Loomer called Musk out for pushing immigration, Elon started shutting down her Xitter privileges.

Which led to Elon “censoring” Loomer’s account, after which she herself adopted the “President Musk” moniker.

Then someone with a manic South African accent using the name Adrian Dittman went into an Owen Shroyer chatroom and further antagonized Loomer.

Perhaps this is all some light-hearted amusement — something to do between the Beyoncé hafltime show and the New Years Eve ball drop.

But I do think it’s a testament to the complexity of the relationship between Trump and Elon. And that’s true for more reasons than the fundamental incompatibility of Trump’s populist nativism and Elon’s supranational aspirations. As it happened, the CR disappointed almost three dozen Republicans, who took Trump’s promise of backing Elon’s plans to cut government seriously. But it also disappointed Trump, who didn’t get Republicans to eliminate the debt ceiling. And those two incompatible stances — cutting government spending versus eliminating all limits to it — are simply two unpopular ways of giving the richest man in the world more tax cuts.

Many people predict, with good reason, that the two Malignant Narcissist problem will soon lead to a break between the men — that Trump will tire of questions about his own authority and lash out, cut off Elon, maybe even retaliate. The more people call Elon the President, the more likely that will happen.

But I’m not convinced that fully accounts for the complexity of this relationship. I don’t know whether that’s because Trump is awed by Elon’s shiny rockets and endless money. Or if there’s further complexity to the way Trump won the election.

It should be the case that Trump, through no more than inaction, a failure to order subordinates to shut down the various investigations and regulatory reviews that threaten Musk, could eliminate the problem Elon poses to his authority.

But Trump has already allowed Elon to chip away at the viability of his coalition.

Merry Christmas to you and your families. May you find some spot of brightness in these choppy times.

I’m the rare person who argues that ABC’s decision to settle Trump’s lawsuit has, at least, some legal explanation. The judge in the case seemed sympathetic to Trump’s argument. George Stephanopoulos did misstate what the jury–as distinct from Judge Lewis Kaplan–said. ABC would not be the first major media outlet to settle a lawsuit before one of its star personalities had to sit for a deposition; Fox always settles before Hannity gets deposed, for example.

This, from Andrew Torrez and Liz Dye, is a good write-up.

But — ironically — WaPo’s inclusion of the ABC settlement in a story billed in its subhead as a description of how Trump will “will ramp up pressure on journalists” betrays a larger, different problem.

Oh sure, it included that legal explanation.

Continuing with the case might have made public any damaging internal communications to and from Stephanopoulos. If the case made it to trial, it would face a jury in Florida — a red state that Trump carried by 13 points — that could side with the president-elect and award a penalty that could easily exceed the price of a settlement. Appeals to any decision would last for years and risk reaching the Supreme Court, where two sitting justices have already expressed their desire to weaken the court’s landmark decision that has protected the American media’s ability to report aggressively on public figures, especially officials, in the public interest.

But before it got there, it described a bunch of other vulnerabilities, most of which have little to do with journalism.

ABC News’s decision to settle has sent shudders through the media industry and the legal community that represents it. According to three people familiar with the company’s internal deliberations who spoke on the condition of anonymity because they were not authorized to discuss legal strategy, ABC and Disney executives decided to settle not only because of the legal risks in the case but also because of Trump’s promises to take retribution [sic] against his enemies.

[snip]

Disney conducts business in more than 130 countries and employs roughly 225,000 employees — a virtual nation-state with corporate shareholders it is legally obligated to consider when making strategic decisions. The executives reasoned that being in active litigation with a sitting president could hamper the business.

Disney’s ABC operates more than 230 affiliate television stations nationwide, some relying on the Federal Communications Commission for license renewals. Trump has repeatedly talked about pulling the federal licenses from television stations that broadcast news about him he doesn’t like and said last year that he plans to bring the FCC under presidential authority.

Disney and many other media companies are already planning potential merger activity that executives hope passes muster with the antitrust division of the Justice Department, which is poised to be run by Trump loyalist Pam Bondi. Disney pumps out movies and television shows that it needs to appeal to the millions of people who voted for Trump and have already shown themselves willing to boycott products he attacks.

These are:

• Disney’s obligations to shareholders require that it weigh the impact the lawsuit will have on the larger 225K person company.
• Its 225 TV stations, and their periodical license renewals, make it vulnerable to the whims of the FCC.
• Disney has other corporate acquisitions planned that might be subject to antitrust review.
• Disney’s movies must not only appeal to Trump supporters, but withstand boycotts from them.

Some of this — the need to sell Disney movies and the past tussle with Ron DeSantis — appears in the NYT story that (as WaPo notes) first confirmed Bob Iger’s personal involvement. It is consistent with what others have said about how the lawsuit fits into ABC’s larger corporate perspective.

But it included more, such as the bit about how ABC caved because it has corporate acquisitions that could be vetoed by Pam Bondi’s DOJ.

It’s not the details of this that I find curious.

It’s that a media reporter and a democracy reporter working for Jeff Bezos did not distinguish the things that are journalism (at a stretch, the ABC licenses) from what is not (the action hero movies and other corporate acquisitions).

Indeed, the article generally does not maintain a distinction between its discussion of press freedoms and media corporations. The word “press” appears 13 times (including in the subhead, which the journalists would not have written, and four times in two quotes apiece from cited experts). The word “media” appears 15 times (including in the heading and a caption and several times as an adjective in a title). The word “journalist” shows up just four times, twice in a discussion of how past presidents (Nixon and Obama) cracked down on journalism, once referring to talking head Chuck Todd.

Without reflection, it treats the plight of giant media companies as the same as its impact on journalism.

The article adds a few new details about why a corporation built off nearly a century of Intellectual Property protection for a cartoon mouse settled a lawsuit. But it doesn’t lay out the obvious implication of the story it tells: that ABC was vulnerable to Trump’s attack not, primarily, because of its journalism — because of what Stephanopoulos said — but instead because the mouse company is not primarily interested in journalism.

That is, it is precisely Disney’s size and scope that rendered it vulnerable to Trump’s threats.

That’s not a novel discovery: that multinational corporations that happen to own journalistic outlets have interests that conflict and undermine their journalism. But as we discuss how to protect journalism while Trump tries to neuter it, it is an important reminder. Even Trump’s lawsuit against the Des Moines Register pits Gannett’s interests against Ann Selzer, though at least Gannett is primarily a journalistic outlet.

For a corporation like Disney — or an oligarch like Jeff Bezos — it’s the other competing interests that may doom the journalism. And journalists need to be clear about that dynamic.

Update: It turns out that Brendan Carr is going to intrude in ABC’s license renewals anyway. Carr wrote Bob Iger, citing the settlement, complaining about how ABC is negotiating its renewals.

The incoming chairman of the Federal Communications Commission is sending a stern message to the owners of television stations and networks. And he is using ABC’s recent settlement with President-elect Donald Trump as a news peg of sorts.

Brendan Carr, a Trump-appointed commissioner who will become chairman next month, wrote to Disney CEO Bob Iger over the weekend about the Disney-owned ABC network’s negotiations with its affiliated stations across the United States.

Brian Stelter posted the letter here.

I want to elaborate on some points I made in a Bluesky exchange I had with Greg Sargent about his post on the Barry Loudermilk report referring Liz Cheney for investigation yesterday. It was, I hope, a civil and substantive exchange (multiple people have mentioned it since), and for that I want to thank Sargent.

But I wanted to explain some points I tried making at more length.

Sargent’s post noted — and he’s right — that Trump’s embrace of Loudermilk’s report discredits false assurances Senate Republicans have offered that Kash Patel won’t pursue political witch hunts if confirmed as FBI Director.

Barely moments after Donald Trump announced that he’d chosen loyalist Kash Patel as FBI director, Republicans stampeded forth to insist that this in no way means Trump will unleash law enforcement on his enemies, even though Trump himself has threatened to do so. Senator John Cornyn suggested such threats were only for “public consumption.” Senator Rick Scott said Trump is “not gonna do it.” And Representative Dan Meuser scoffed that the very idea is “nonsense.”

These lawmakers should take a moment to consult Trump’s Truth Social feed. At 3:11 a.m. on Wednesday, demonstrating characteristic emotional balance, Trump posted this reaction to a new report from a House subcommittee chaired by GOP Representative Barry Loudermilk, which recommends that the FBI investigate former GOP Representative Liz Cheney over her role in the House’s January 6 inquiry:

Liz Cheney could be in a lot of trouble based on the evidence obtained by the subcommittee, which states that “numerous federal laws were likely broken by Liz Cheney, and these violations should be investigated by the FBI.” Thank you to Congressman Barry Loudermilk on a job well done.

Note the trademark mobspeak here: Cheney could be in a lot of trouble for federal lawbreaking, Trump declares, as if he’s merely a passive observer remarking on the danger she faces, rather than someone who will control the nation’s sprawling federal law enforcement apparatus in just over a month. Trump has been raging at Cheney for years and has amplified suggestions that she should face televised military tribunals.

Now, in a dark turn in this whole farcical saga, Trump is pretending that House Republicans have given him a legitimate basis for prosecuting Cheney, when in fact their claims were cooked up in bad faith for precisely that purpose.

Sargent argues that the press should “hound[ GOP Senators] mercilessly” on whether they’ll still support Kash after Trump’s endorsement of Loudermilk’s report.

Trump’s veiled threat toward Cheney should prompt the press to revisit those reassurances from Republicans. GOP senators should be hounded mercilessly by reporters on whether they’ll knowingly support Patel now that Trump has made the corrupt reality of the situation so inescapably, alarmingly clear.

If we lived in a world where Republican hypocrisy could be shamed, where journalists had the skill to manage such an exchange, that would be worthwhile.

We don’t live in that world.

Trying to budge Republicans from their reassurances would backfire.

Here’s why.

First, consider the utter incompetence of most journalists this side of Mehdi Hasan to handle such an exchange.

I’ve been tracking a right wing technique I’ve dubbed “Cotton swabs” (because Tom Cotton is a skilled practitioner in the technique). In it, when Republicans get asked these kind of gotcha questions by Manu Raju in the hallway or by Kristen Welker on a Sunday show, they instead flip the gotcha on its head, using it as an opportunity to air unrebutted propaganda. And the journalist is left as a discredited prop in Trump’s assault on the press.

For example, when Welker recently asked Trump if he would, in the interest of unifying the country, concede he lost the 2020 election, Trump not only refused to concede he lost, but he used the question to blame Biden that the country was divided, and then — with absolutely no pushback from Welker — lied about Joe Biden weaponizing DOJ to go after him, Trump. (The exchange introduced precisely the same kind of false reassurance that Sargent called out.)

KRISTEN WELKER:

Yes. And sir, I don’t have to tell you this, because you’ve talked about it. It comes at a time when the country is deeply divided, and now you’re going to be leading this country for the next four years. For the sake of unifying this country, will you concede the 2020 election and turn the page on that chapter?

PRESIDENT-ELECT DONALD TRUMP:

No. No, why would I do that? But let me just tell you —

KRISTEN WELKER:

You won’t ever concede —

PRESIDENT-ELECT DONALD TRUMP:

– when you say the country is deeply divided, I’m not the president. Joe Biden is the president.

KRISTEN WELKER:

But you’re going to be the president.

PRESIDENT-ELECT DONALD TRUMP:

No, no. I’m not the president. So when you say it’s deeply divided, I agree. But Biden’s the president, I’m not. And he has been a divider. And you know where he divided it more than anything else, and it probably backfired on him. I think definitely is weaponization. When he weaponized the Justice Department and he went after his political opponent, me. He went after his political opponent violently because he knew he couldn’t beat him. And I think it really was a bad thing, and it really divided our country.

So instead of giving the harmless concession she invited, that Trump lost to Joe Biden in 2020, Trump instead hijacked Welker’s platform to lie about being a victim. She asked for something to support unity. He stoked division more, blaming the polarization of the country on Biden. Then he made false claims of grievance.

It had exactly opposite effect Welker imagined. And in the fact check NBC did after the interview? Trump’s lie about Biden weaponizing DOJ went unmentioned.

NBC treated it, a brazen lie, as if it were true.

If you want to know how Trump got elected even after being charged in two federal indictments, you might start with the way that every legacy media outlet lets lies like this go uncontested.* Always. Trump never gets fact checked on his false claims about the federal investigations into his attempted coup and stolen documents.

As a result, even newsies who watch mainstream Sunday shows might be forgiven for believing the cases against Trump were ginned up, to say nothing of the judges and lawyers, from Aileen Cannon to Bill Barr to Sam Alito, who instead pickle their brains with the propaganda on Fox News.

If journalists don’t fact check these false claims, where would voters learn differently? Where would your average voter learn that the investigations against Trump were just?

Sometimes Cotton swabs involve speaking over the questioner (a favorite technique of JD Vance [see update below for an example] and Marco Rubio). Sometimes it involves flipping the entire premise of the question. It always involves, first, a shameless refusal to disavow the outrageous Trump practice or statement. As such, these are performative moments of obeisance, reinforcing Trump’s power and the assault on truth he demands.

And on questions regarding Trump’s troubled relationship with rule of law, it always involves false claims about past DOJ practice, either denials he politicized DOJ or false claims it was politicized against him. Sometimes both!

Trump and his allies have used Cotton swabs to sneak hundreds — probably thousands — of false claims that he, and not his adversaries, was a victim of politicized prosecution onto purportedly factual news outlets with no pushback.

None.

Indeed, at least one of the underlying examples of Republicans giving reassurances about Kash that Sargent cited was itself a Cotton swab. Rick Scott didn’t just say that Trump wouldn’t launch investigations in his second term, the part Sargent quoted, he premised his answer on a false claim that Trump didn’t do so in his first term (a very common claim among Trump’s most loyal allies).

“He didn’t do it the first time. He’s not gonna do it this time,” Scott said. (Trump actually did press for prosecutions of his enemies during his first term, such as by publicly musing there should be probes of former Democratic presidential candidate Hillary Clinton, and he also pushed for a criminal investigation into a previous investigation of his 2016 campaign.)

Even with Arthur Delaney’s fact check (a rarity in the reporting of Cotton swabs), HuffPo didn’t note that Trump did more than simply demand investigations of his adversaries, he got them. A key prong of the John Durham investigation chased possible Russian disinformation exacerbated by Durham’s own fabrications to criminalize Hillary’s use of oppo research. And both Durham’s indictments presented dodgy false statement accusations as conspiracies extending to the Hillary campaign. Trump’s DOJ set up a side channel via which Biden was framed — a false allegation used to ratchet up felony charges against his son. And there’s a long line of investigations — IRS audits, DOJ IG investigations used to fire people without due process, US Attorneys ordered to pursue special investigations (including another one targeting Hillary) — that targeted Trump’s enemies.

Trump’s administration targeted his enemies all the time, via a variety of means. And yet that gets buried in the HuffPo report. What should have been an opportunity to debunk Scott’s premise was, even from a diligent journalist, an exchange that still obscured how systematically Trump politicized rule of law in his first term.

And these Cotton swabs are part of a larger process, the extended con via which Trump has gotten Republicans to hate rule of law that LOLGOP and I have been tracing in the Ball of Thread podcast. Rather than treating the Russian investigation as a welcome review of four associates all of whom were monetizing their access to Trump with foreign countries, he instead latched onto false claims he was wiretapped, making himself a victim. With the help of Kash Patel, Trump substituted the Steele dossier for the real substance of the Russian investigation, convincing most Republicans that the investigation started not from the Trump campaign’s foreknowledge of the Russian attack on Hillary, but instead from Hillary’s attempt to understand Trump’s unabashed Russian ties — that oppo research Durham would criminalize. Trump then turned on the FBI, claiming that a bunch of people who were just trying to protect the country from an attack by a hostile country were instead targeting him personally; the myth that FBI targeted him is precisely what John Cornyn internalized when he attributed his support for Kash because Kash planned, “to restore the FBI to its former reputation as a nonpartisan, no political institution, and he told me he agreed” (also part of the Delaney story). Via both his own propaganda and the Durham investigation designed to flip the script on Hillary, Bill Barr reinforced that myth of Trump grievance. And all that while the entire Republican party responded to Trump’s extortion of Ukraine by relentlessly pursuing Joe Biden’s kid to the exclusion of pursuing policy, using a fabricated bribery allegation to ratchet things up before their rematch. Think about that! Trump dodged his first impeachment by ginning up a politicized investigation of Biden and his kid, and that entire process has been memory holed!

Gone!

Poof!

And while LOLGOP and I still have several episodes to do, it is no accident that the same team that turned a hard drive of Hunter’s dick pics — a relentless campaign of revenge porn — into yet another claim that poor Donald Trump was the victim, it is no accident that that very same team turned immediately to using the Big Lie to attack the foundations of American democracy. And Trump did it again when he beat the second (impeachment) and third (criminal indictment) attempts to hold him accountable. The price of admission in today’s GOP is these moments of performed fealty, the willingness to use legitimate questions about the politicized justice Kash has promised to instead publicly adopt Trump’s false claims that he is a victim.

The entire GOP is currently built around this myth of grievance. It gets reinforced with every Cotton swab. It was Trump’s platform during the election. It was the lie he used to make a bunch of disaffected Americans believe they had something in common with a billionaire grifting off their vulnerabilities.

This is the core of Trump’s super power, the claims of grievance he manufactures to justify his assault on rule of law.

The last thing you should want is for journalists to rush out to give Republican Senators yet another opportunity to perform their obeisance to Trump and his false myths of grievance, because all it will do is reinforce the polarization Trump thrives on and do further damage to truth and rule of law.

If we’re going to break this spell, we need to go about it a different way, some of which Sargent and I also discussed with respect to Kash, some of which I laid out in an earlier post responding to something Sargent wrote.

You are not going to defeat a Kash Patel or Pam Bondi nomination by asking for promises about political investigations. As I noted in that earlier post, Democrats (and even Lindsey Graham) attempted that approach with Bill Barr, and he proceeded directly from his confirmation to turn DOJ into a propaganda factory, down to the fabricated bribery allegation against Joe Biden.

Leave the direct assault on Kash to Olivia Troye (if she remains willing), to whom Kash already provided opportunity to talk not about his past role in abusing rule of law for Trump, but instead about how he lied to the people who relied on him, up to and including Mike Pence. Troye gives Republicans reason to oppose Kash because he has harmed Republicans. If you instead focus on Kash’s past and promised politicization, you’ll just trigger more obeisance to Trump’s myth of grievance.

Luckily, with Kash, there are other ways to get at this.

The question that kicked off the entire exchange between Sargent and me, for example, was about Speech and Debate, which should protect Liz Cheney from any scrutiny even if the false claims alleged in the Loudermilk report were true. Raising the Loudermilk referral as a question about Speech and Debate has the advantage of addressing the one area that has gotten Republicans to stand up to Trump, their own prerogatives (for example, by defending advice and consent on nominations). Questions about Speech and Debate would provide cause to raise the opinion — written by Trump appointee Neomi Rao, with a concurrence from former Trump White House Counsel Greg Katsas — that extended Speech and Debate protection to Scott Perry’s plotting on the Big Lie and affirmed its application in less formal situations than Liz Cheney’s communication with Cassidy Hutchinson at the core of Loudermilk’s report.

The district court, however, incorrectly withheld the privilege from communications between Representative Perry and other Members about the 2020 election certification vote and a vote on proposed election reform legislation.

Does Kash know better than Neomi Rao about Liz Cheney’s immunity from this kind of investigation, he should be asked (whether Rao or Kash is a bigger nutball is admittedly a close question, but one that can sow some useful discomfort). Questions to Kash about whether Speech and Debate defeats Loudermilk’s referral would have a very different valence than questions about politicization, because they would carry with them the implication that if Kash can investigate Liz Cheney and Adam Schiff, Mitch McConnell will be next.

Plus, they provide cause to focus on something Senators should address anyway: Kash’s lawsuit against DOJ for his own subpoena. In addition to claiming that the subpoena targeting him and others (including Adam Schiff, though he neglected to mention that) was “a chilling attempt to surveil the person leading the Legislative Branch’s investigation into the Department of Justice’s conduct,” something also included in the scope of the January 6 Committee, Kash also made preposterous claims about the standard for subpoenas (which is why it was dismissed unceremoniously in September).

Even Kash’s legally illiterate claims won’t disqualify him with Republican Senators, but raising them gets him on the record as to his understanding of the law before he signs a bunch of orders adopting wildly different standards targeting Trump’s adversaries. Kash has made expansive claims about privacy rights and right of redress against the federal government. Fine. Let’s make aspiring FBI Director Kash Patel adhere to that standard.

But they also provide a way to point out that Kash’s targets actually aren’t Trump’s targets. Many of those on his enemies list, for example, are people, like Rod Rosenstein (the real target of Kash’s lawsuit) against whom he’s got a grudge. Trump and GOP Republicans don’t give a damn if Kash pursues Trump’s enemies. Either they’re too cynical to care, or they believe — or have to feign that they believe — that Trump’s enemies have it coming. But if Kash turns the FBI into his own personal fiefdom? Too many Republicans have been at odds with Kash to abide by that.

Finally, there’s the point I made about the Loudermilk report, after actually taking the time to read it (which no one else seems to have done). In the 39 pages of his report dedicated to DOD’s inaction, Loudermilk gets vanishingly close to accusing then Acting Secretary of Defense Christopher Miller of criminal insubordination for not deploying 10,000 members of the National Guard on January 6.

President Trump instructed the highest-ranking Pentagon official to use any and all military assets to ensure safety three days prior to January 6, 2021. The Acting Secretary of Defense concedes that external variables, such as the “Twitter sphere”, accusations of being a “Trump crony” and Representative Cheney’s Op-Ed, weighed on his mind as he determined how and whether to employ the National Guard on January 6, 2021. During this period of time, Acting Secretary Miller published his January 4 memo, with significant restrictions and control measures on the DCNG.

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

Loudermilk sources this accusation in DOD IG’s own investigation of their inaction for some very good reasons. First, the January 6 Committee revealed that what really happened is that a bunch of Trump loyalists, up to and including Mark Meadows, scoffed at the notion that Trump would march to the Capitol protected by 10,000 National Guard troops. More importantly, Kash Patel’s claims about his own involvement in this process put him right there at Miller’s side, part of the same insubordinate inaction. That’s a fiction Loudermilk needed to spin. It’s a fiction even more outrageous than his referral of Liz Cheney.

But it’s also a referral that implicates Trump’s pick for FBI Director personally. Did Kash fail the President? Or did he instead join everyone else in recognizing what it would mean for Trump to march to the Capitol?

A damn good question for a confirmation hearing.

Kash Patel’s own big mouth, past actions, and wacky legal claims provide ample material to create friction between him and Senate Republicans guarding their own prerogatives. That’s almost certainly not enough to sink his nomination, though it would be more effective than inviting Republicans to reaffirm their belief in Trump’s grievance myth. But questions about such topics may provide better material going forward to box him in.

About one thing I’m certain, though: you will get nowhere if you make this a loyalty contest. You will get nowhere if you keep framing this as an opportunity for Republicans to either reaffirm that loyalty oath, even if it entails a direct assault on rule of law, or invite an attack on themselves personally.

Virtually all GOP Senators will find a way to back Trump and his assault on rule of law. Every single time.

And given the inept media we’ve got right now, it will serve only to do more damage, reinforcing Trump’s conceit that the law is just a matter of political loyalty.

Do not give Republicans an opportunity to condemn or endorse Kash Patel’s witch hunt against Trump’s enemies. It’s the quickest way to ensure they remain unified in supporting him.

*The night after I wrote this, I woke up and remembered that CNN’s Daniel Dale had written a fairly extensive fact check about Trump going after his adversaries. The exchange with Martha Raddatz he responded to was a good example of how JD Vance talks over people to deliver his Cotton swabs, filibustering to prevent any rebuttal.

RADDATZ: Would Donald Trump go after his political opponents?

VANCE: No —

RADDATZ: He suggested that in the past.

VANCE: Martha, he was president for four years and he didn’t go after his political opponents.

You know who did go after her political opponents? Kamala Harris, who has tried to arrest everything from pro-life activists to her political opponents —

(CROSSTALK)

RADDATZ: He said those people who cheated would be prosecuted.

VANCE: — and used the Department of Justice as a weapon against people — well, he said that people who violated our election laws will be prosecuted. I think that’s the administration of law. He didn’t say people are going to go to jail because they disagree with me. That is, in fact, been the administration and the policy of Kamala Harris, Martha.

Look, under the last three-and-a-half years, we have seen politically-motivated after politically-motivated prosecution. I’d like us to just get back to a system of law and order where we try to arrest people when they break the law, not because they disagree with the prevailing opinion of the day, and there’s a fundamental difference here between Donald Trump and Kamala Harris. Donald Trump may agree — agree or disagree on a particular issue, but he will fight for your right to speak your mind without the government trying to silence you.

Kamala Harris is explicitly —

RADDATZ: Senator Vance, I —

(CROSSTALK)

VANCE: — censorship of folks who disagree with her.

RADDATZ: I want to go back to Donald Trump.

(CROSSTALK)

In response to Dale’s fact check, Trump’s campaign accused the media of a double standard because DOJ hadn’t indicted Biden or Hillary for their non-crimes.

Trump made extensive behind-the-scenes efforts to get his political opponents charged with crimes. But you don’t have to rely on investigative reporting or the memoirs of former administration officials to know that Trump went after political opponents as president.

He often went after them in public, too.

As CNN reporter Marshall Cohen has noted, there is a long list of political opponents whom Trump publicly called for the Justice Department and others to investigate or prosecute. The list includes not only 2016 election opponent Hillary Clinton and 2020 election opponent Joe Biden but also Biden’s son Hunter Biden, Democratic former Secretary of State John Kerry, Trump’s former national security advisor turned critic John Bolton, Democratic former President Barack Obama, unspecified Obama administration officials, the anonymous author of a New York Times op-ed by a Trump administration official critical of Trump, MSNBC host and Trump critic Joe Scarborough, former FBI director turned Trump critic James Comey, other former FBI officials, former British spy Christopher Steele (the author of a controversial dossier of allegations against Trump), and various congressional Democrats – including former House Speaker Nancy Pelosi, Rep. Adam Schiff of California, Rep. Ilhan Omar of Minnesota, Sen. Richard Blumenthal of Connecticut, and Sen. Mark Warner of Virginia.

Asked for comment for this article on Monday, Vance spokesperson Taylor Van Kirk accused the media of having a biased “double standard” and said “it is indisputable that under Kamala Harris and Joe Biden’s DOJ, the Republican nominee for president was targeted and indicted, while under President Trump, nothing like that ever transpired against either of the Democrats he faced off with in 2016 or 2020.”

But that wasn’t for a lack of Trump trying.

Trump repeatedly pressured the Justice Department as president to prosecute both Clinton and Biden, in addition to trying to get foreign countries to investigate Biden. That the Trump-era Justice Department declined to charge Clinton and Biden doesn’t mean it’s true that Trump didn’t “go after” them or others. (In fact, Trump literally said in 2017 that he wanted the department to be “going after” Clinton.) [my emphasis]

But even Dale, the best in the business, made no mention of how aggressively Durham investigated Hillary and her campaign and ignored that the Brady side channel led directly to the elevation of Alexander Smirnov’s attempt to frame Joe Biden, which had a role in David Weiss’ elevation as Special Counsel, which led to the felony conviction of Hunter [Dale relies heavily on CNN’s Marshall Cohen, who got the Durham investigation wildly wrong].

In 2019, Barr satisfied Trump’s investigate-the-investigators demand by tasking a federal prosecutor to help investigate the origins of the FBI’s probe related to Russia and the 2016 election. In late 2020, with about three months left in Trump’s presidency, Barr gave that prosecutor, John Durham, the status of special counsel.

And in early 2020, Barr tasked a different federal prosecutor with taking in information from members of the public, notably including then-Trump lawyer Rudy Giuliani, related to allegations about the Bidens and Ukraine, which had been a subject of Trump’s public and private focus.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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

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

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

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

His phone is ringing.

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

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

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

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

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

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

He answers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s why you disclose such things.

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Loudermilk’s tribute to Kash Patel’s leadership

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[Discussion off the record.]

Q sure. Go ahead.

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

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

[snip]

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

A don’t recall him ever saying that.

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

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

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

How Barry Loudermilk covers up his own coverup

Which brings us to Loudermilk’s own coverup.

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

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

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

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

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

But Jack Smith released an unredacted fragment of that transcript.

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

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

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

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

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

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

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

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

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

Loudermilk’s sketchy evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Synonyms
payback
reprisal
requital
retaliation
revenge
vengeance

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

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

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

He declared, “2024 is the final battle.”

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

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

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

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

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

[snip]

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

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

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

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

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

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

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