If Kamala Harris loses today, America’s media ecosystem will bear a great deal of the blame.

As I’ve said before, part of that is the hermetically sealed Trump propaganda industry, starting with Fox News. About 35% to 40% of American voters live in that world and believe Trump’s false claims of grievance. With Pete Buttigieg leading the way and a bunch of ad buys, Harris cracked that world just enough to elicit squeals about betrayal from Trump.

Part of that is the disinformation industry, led by Elon Musk. As more of America becomes a news desert, voters’ window on the world is often mediated by the algorithms of people, like Musk, who have a stake in debasing reason.

But a big part of it is the legacy media, which has gotten so addicted to horse race that it has lost interest in the reality of politics’ effects on ordinary people’s lives.

In an interview with Margaret Sullivan, Jay Rosen describes how reporters chose to chase Joe Biden’s alleged attack on Trump supporters rather than things that mattered to voters.

“But the horse race is too easy, too available — it has all these advantages,” he said.

How does this play out? This is my example, not Jay’s, but consider how the New York Times and the Washington Post, along with others in national media, gave such huge emphasis last week to the story about Biden’s verbal gaffe in which he used the word “garbage.” (He says he was describing the demonization of Puerto Rican people that was depicted at Trump’s appalling Madison Square Garden rally; others — especially on the right — heard Biden’s words as a description of Trump’s followers.)

If coverage is based around the horse race, this is a big story because it remind people of how Hillary Clinton’s 2016 campaign was damaged after she described some Trump fans as a “basket of deplorables.” And indeed, that’s how they played it — both major newspapers led their home pages with that story, framing it as how Kamala Harris was being forced to distance herself from Biden and how it was giving “grist” to her opponents. Both papers also put the story above the fold on their Thursday front pages.

Huge, in other words. As Greg Sargent of the New Republic put it in a smart X thread: “The news hook is literally that it provided ‘grist’ to Republicans,” and this in effect “outsources the judgment about the newsworthiness of the event to bad-faith actors.” He’s right. It’s also classic false equivalence — as Trump devolves into simulating oral sex with a microphone, there must be something bad to say about Harris’s campaign, right?

If media coverage had been centered around the potential loss of American democracy, or really, anything other than horse race coverage, this Biden screwup wouldn’t have mattered much. Biden’s not the candidate, after all. There’s no actual consequence to this story.

But if your organizing principle is the horse race — neck and neck going into the home stretch! — Harris’s response is a much bigger deal. So the emphasis tells us a lot.

In a piece reminding that Rick Perlstein this childish practice of chasing bogus scandals has a long history — did you know that the press shamed John McCain for fighting back against Karl Rove’s black baby smear? — he also notes that sometimes voters just won’t play along.

Breaking en masse for Kamala Harris, Puerto Ricans just might be the ones who end up confounding that elite media’s desperation to end this race in a photo finish. If they do, they will have proved once and for all that the most malodorous garbage during this campaign was the stuff those elite journalists kept trying to shovel in our face.

Indeed, as Daniel Marans described, some Puerto Rican voters took renewed offense from Trump’s stunt of renting a garbage truck.

Nilsa Vega and Neidel Pacheco of Hellertown, a borough south of Bethlehem, both said they had never voted before, but Hinchcliffe’s remarks were the reason they planned to vote for Harris on Tuesday.

“That hit the spot right there,” Vega said. “They keep saying, ‘Oh, he’s only a comedian.’ It still hurts.”

Pacheco saw Trump’s decision to pose in a garbage truck at a campaign stop in Wisconsin the following day as an additional insult. “If he didn’t have nothing to do with it, what’s he doing in the garbage truck?” Pacheco asked.

Meanwhile, here’s a story about the Syracuse student who got one of the most impactful stories in a key swing district: whether Republicans will cut off job-creating funding from the CHIPS Act.

Back on July 17 — four days before Biden dropped out — I made a list of stories that the press was ignoring by instead focusing on Joe Biden Old. They were:

• Is Trump a Saudi Foreign Agent?
• What deals has Trump made with Putin and/or Orbán?
• What happened to the missing classified documents?

I’d add a few more:

• What is the state of Trump’s health and is he suffering ongoing symptoms from the shooting attempt?
• Who are the other business partners and backers behind the various means Trump has established, like Truth Social, to launder payments?

We are hours away from polls closing, and Eric Lipton is one of the few journalists (along with Forbes, which reported on a new loan Trump got in 2016 today) who has shown much curiosity about who actually owns Trump.

We literally don’t know the precise nature of the business relationship between the Saudis and Emiratis — to say nothing of Russia or Egypt — and the Republican candidate for President.

Instead, we know that Republicans were able to bait the press into chasing an apostrophe for several of the last days of this campaign.

I’ve been thinking a lot about Donald Trump’s second impeachment.

As we approach the election with Trump still facing a decent (though declining) chance of winning, a lot of justifiably worried people are again choosing to spend their time whinging about Merrick Garland rather than doing something constructive to help defeat Trump.

There remains a belief that it was Garland’s job — and that Garland had the power — to disqualify Trump from running this race.

A remarkable instance is Rachel Bitecofer, a PoliSci professor who has written on negative partisanship, the way in which people vote against something rather than necessarily for something.

That Bitecofer is spending days in advance of the election doing PR for John Roberts is especially inexcusable because her using partisan anger to get them to vote.

Days before the election, she falsely told voters to be mad about Merrick Garland rather than mad about John Roberts, the guy who is directly responsible for eight months of delay, or Mitch McConnell, the guy with primary responsibility for disqualifying Trump.

She’s breaking her own rule.

That’s one reason I’ve been thinking about the January 6 impeachment: because, in fact, it was McConnell’s job to disqualify Trump from running this race, and McConnell chickened out. Oh, I think there are things that might have altered the outcome of impeachment. Most notably, I think Nancy Pelosi made a mistake in not appointing Liz Cheney to the prosecution team. That would have given Cheney an earlier opportunity to play the formidable leadership role that she later played on the January 6 Committee. Cheney, as a member of GOP leadership, was witness to conversations involving Mike Johnson and Kevin McCarthy that might have tipped the decision to call witnesses. And as her support for Kamala Harris’ campaign has shown, she has the stature to persuade Republicans to put country over party.

But I’m also thinking about why that impeachment failed. Republicans offered two kinds of excuses, one procedural and one evidentiary. Procedurally, McConnell and others argued, they didn’t have the authority to impeach Trump after he left office.

It was a cop out, but — as we’ll see — one that played a role in the immunity decision.

Trump also made some evidentiary arguments against the claim that Trump incited the attack. Trump argued, for example, that rioters planned their attack in advance, and so couldn’t have been incited by Trump.

Despite going to great lengths to include irrelevant information regarding Mr. Trump’s comments dating back to August 2020 and various postings on social media, the House Managers are silent on one very chilling fact. The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse. According to investigative reports all released after January 6, 2021, “the Capitol Police, the NYPD and the FBI all had prior warning there was going to be an attack on the Capitol…” 14

14 Ian Schwartz, John Solomon: Capitol Riot Was A “planned Attack,” Can’t Blame Trump; What Did Pelosi and McConnell Know?, Real Clear Politics (Jan. 13, 2021), https://www.realclearpolitics.com/video/2021/01/13/john_solomon_capitol_riot_was_a_planned_attack_c ant_blame_trump_what_did_pelosi_mcconnell_know.html

Leaning almost entirely on the presence of provocateur John Sullivan at the riot, Trump argued that because rioters had motives other than to support Trump, Trump couldn’t have been responsible.

The real truth is that the people who criminally breached the Capitol did so of their own accord17 and for their own reasons, and they are being criminally prosecuted. 18

17 Some anti-Trump, some ani-government. See, e.g., Alicia Powe, Exclusive: “Boogaloo Boi” Leader Who Aligns with Black Lives Matter, Gateway Pundit, (Jan. 17, 2021), https://www.thegatewaypundit.com/2021/01/boogaloo-boi-leader-aligns-black-lives-matter-boastedorganizing-armed-insurrection-us-capitol/. “The goal of swarming the home of the U.S. House of Representatives and Senate is “to revel in the breach of security while mocking the defenses that protect tyrants…whether that be Trump or others.” See also Robert Mackey, John Sullivan, Who Filmed Shooting of Ashli Babbitt, The Intercept (Jan. 14, 2021), https://theintercept.com/2021/01/14/capitol-riot-john-sullivan-ashli-babbitt/ (“The rapper, who later retweeted a brief video clip of himself and Sullivan inside the Rotunda that was broadcast live on CNN, told me in an Instagram message … “I’m far from a Trump supporter…I really don’t even get into politics at all. It was an experience for me and that’s really the only reason I was there.”)

18 See, e.g., Tom Jackman, Marissa J. Lank, Jon Swaine, Man who shot video of fatal Capitol shooting is arrested, remains focus of political storm, Washington Post (Jan. 16, 2021), https://www.washingtonpost.com/nation/2021/01/16/sullivan-video-arrested/.

Trump repeatedly treated his use of the word “fight” as figurative.

Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever. The only reference to force was in taking pride in his administration’s creation of the Space Force. Mr. Trump never made any express or implied mention of weapons, the need for weapons, or anything of the sort. Instead, he simply called on those gathered to peacefully and patriotically use their voices. [emphasis original]

Most crucially, Trump noted that the attack on the Capitol started before he finished speaking.

A simple timeline of events demonstrates conclusively that the riots were not inspired by the President’s speech at the Ellipse. “The Capitol is 1.6 miles away from Ellipse Park which is near the White House. This is approximately a 30-33 minute walk. Trump began addressing the crowd at 11:58 AM and made his final remarks at 1:12 PM… Protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”20

Trump also complained that the House Democrats used news reports of the rioters’ actions, rather than legal documents.

Some of these excuses are flimsy. Most rely on a rupture between the law prohibiting incitement, which prohibits both inciting an insurrection but also “set[ting] on foot, assist[ing], or engag[ing]” in insurrection, and the holding in Brandenburg, which limited incitement to those stoking imminent illegal action. Those who claim that Trump committed a crime in plain sight would have to rebut these defenses.

In the January 6 Committee’s incitement referral, the argument shifted away from arguing that Trump incited insurrection with just his speech, focusing more on Trump’s failure to stop the riot. They argued:

• Trump summoned a mob and then further provoked the already rioting mob with his Tweet targeting Mike Pence.
• Two of the rioters described their actions in terms of Trump’s orders.
• After the riot was already started, Trump refused to take action to protect the Capitol.
• Trump told close aides that Mike Pence deserved the chants threatening to hang him.
• Trump has since — starting as early as September 2022, before either sedition trial — promised to pardon the rioters.

J6C did good work, but this insurrection referral was just as thin as their obstruction one. Their citation to January 6ers still relied on press reports rather than court records. And rather than relying on Oath Keeper Kelly Meggs’ hunt for Nancy Pelosi — Meggs had been convicted of sedition a few weeks earlier — the report relies on Cleveland Meredith, who never made the insurrection. They don’t incorporate the excellent work J6C did to reconstruct how Trump ordered language targeting Mike Pence back into his speech after Pence refused the President’s entreaties to steal the election.

To be sure, at that point in December 2022, prosecutors were still working on the case that Trump incited the mob. The Proud Boy leaders’ trial — which J6C’s decision to withhold their transcripts had delayed three months — wouldn’t start until early the next month and wouldn’t conclude until May 2023. And it would take another five months, until April 2023, for DOJ to present their best evidence that Trump incited someone at his speech — Danny Rodriguez — to go attack the Capitol and tase Michael Fanone; in the wake of Fischer, however, the sentences of Rodriguez’ co-conspirators have been sharply reduced. People complain that DOJ focused on the crime scene, but before you could even consider incitement, you’d have to account for the Proud Boys and people like Rodriguez.

Before SCOTUS started rewriting the laws applying to January 6, prosecutors were prepared to show specifics about Trump’s culpability for the attack. This is how Jack Smith’s team described Trump’s responsibility for his mob almost exactly a year ago.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

A year ago, prosecutors promised to prove that Trump sent his mob to the Capitol, where many of the people Trump had told to “fight” assaulted cops. They have argued for over a year that the mob was the tool that Trump used to obstruct the vote certification.

Last month, subsequent to Fischer, Jack Smith’s argument changed a bit. He relied more on an aid and abet theory of Trump’s liability for his mob’s actions.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001).

One way or another, however, as charged Jack Smith is relying on the 18 USC 1512(c)(2) charges to tie Trump to his mob. DOJ needs to sustain at least some of the obstruction charges against crime scene defendants to make this stick. And an opinion from Beryl Howell, freeing two Proud Boys from prison based on her judgment that nothing they did at the Capitol impaired the availability or integrity of the electoral certificates, will make that harder to do.

But let’s go back to whether Merrick Garland — or DOJ prosecutors who spent 30 months showing that Trump incited people like Danny Rodriguez to go nearly murder Michael Fanone, or Jack Smith — could then prove that Trump incited an insurrection.

In August 2023, when Smith indicted Trump, it was not clear he could do that. At the least, he faced the likelihood that Trump would argue his acquittal immunized him from being charged criminally. Indeed, even though Smith didn’t charge Trump with inciting an insurrection, he nevertheless sustained that argument all the way to the Supreme Court, causing precisely the delay that people like Bitecofer blame on Garland.

But in the last year, SCOTUS did three things to clarify the issue. As noted, SCOTUS interpreted 18 USC 1512(c)(2) in a way that may imperil Smith’s ability to tie Trump to the actions the mob took via his obstruction charge.

Even before that, on March 4, a unanimous Supreme Court held that the only way Merrick Garland could disqualify Trump from taking office — and technically he still could — would be to convict him 18 USC 2383.

Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.

And thanks to Trump’s own argument about impeachment, SCOTUS has clarified that he can be charged with 18 USC 2383. Sonia Sotomayor cited Mitch McConnell’s cop out in her dissent in the impeachment case.

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

John Roberts didn’t address the cop out in his majority opinion, but he did say that if the political process of impeachment failed for whatever reason — including failing to “muster the political will to impeach” (which sure sounds like why McConnell failed) — the criminal process remained open.

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

Whatever else SCOTUS did, on July 1, 2024, almost a full year after Smith charged Trump, John Roberts clarified that Smith could charge Trump with insurrection.

If Jack Smith had charged Trump with inciting insurrection on August 2023, the case still would have gone to SCOTUS. Given what a hack John Roberts is, he might have fought harder to avoid creating the following set of rules covering Trump. But between the three opinions this year, Roberts has held that:

• Obstruction may be a reach for January 6, particular a conspiracy between Trump and his mob to obstruct the vote certification
• Insurrection remains good law and the law disqualifies someone from serving as President
• Trump’s acquittal on insurrection does not preclude him being charged with it

The legal questions about whether Merrick Garland could disqualify Trump from running were not resolved until August 7, and the evidentiary questions will not be decided for months yet.

More importantly, those claiming that DOJ could have charged Trump right away are missing a great many steps that had to happen first:

• DOJ had to prosecute all the crime scene defendants — people like Danny Rodriguez — it will use to prove that Trump incited rioters; with Rodriguez, that was held up by COVID, the evidentiary challenges, and his own legal challenges to using his own confession against him. In the case of Rodriguez’ co-conspirator, that took until April 2023.
• DOJ had to resolve the Proud Boy leaders’ case to explain Trump’s relationship to the riot that kicked off even as he was still speaking, which — even though Tarrio’s phone was seized before January 6 — took until May 2023.
• DOJ had to obtain Executive Privilege-waived testimony from (at a minimum) Greg Jacob (who predicted violence), Stephen Miller (to get his testimony regarding the speech), Dan Scavino (to confirm details about the Tweet targeting Pence), and Mike Pence himself. Those challenges started when DOJ subpoenaed Jacob on June 15, 2022, and necessarily proceeded by steps, until Smith obtained Pence’s testimony on April 27, 2023.
• DOJ had to exploit the phone used by Trump on January 6; it’s unclear when that happened.
• DOJ had to force Elon Musk’s Twitter to comply with a warrant for Trump’s Twitter account. He stalled for 23 days in January and February 2023.
• DOJ would probably need the contents of Mike Roman’s phone, which show him egging on a colleague to “Make them riot” at the TCF counting center in Detroit, and Boris Epshteyn’s phone, which implicates Steve Bannon in the conspiracy and through him makes Bannon’s prediction that “All Hell is going to break loose tomorrow” part of the conspiracy. Those phones were seized in September 2022, but I have argued that Roman and Bannon’s belated treatment as conspirators may suggest it took longer than 11 months to exploit those phones (which was known to happen with Enrique Tarrio and Scott Perry’s phones).

As I keep laying out, we know how long the investigation took. We know it took 14 months before the first crime scene defendants could be tried. We know it took over a year to exploit Tarrio’s phone. We know J6C caused at least three months of delay by withholding transcripts. We know it took ten months to get privilege-waived testimony from necessary witnesses.

And we know that John Roberts chose to delay the legal questions from December 2023 until August 2024, eight months.

Merrick Garland might yet charge Trump with insurrection. He might need to, to sustain the tie between Trump and his mob. But we have a pretty clear understanding of why that didn’t happen, couldn’t have happened, before tomorrow’s election.

Just over a year ago, I described how Twitter had been used as a way to sow false claims in support of Trump in 2016 and 2020.

I described how, in 2016, trolls professionalized their efforts, with the early contribution of Daily Stormer webmaster Andrew “Weev” Auernheimer. I quoted testimony from Microchip, a key cooperating co-conspirator at Douglass Mackey’s trial, describing how he took unoffensive content stolen from John Podesta and turned it into a controversy that would underming Hillary Clinton’s chances.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact-check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

After Trump won, the trolls turned immediately to replicating their efforts.

Microchip — a key part of professionalizing this effort — declared, “We are making history,” before he immediately started pitching the idea of flipping a European election (as far right trolls attempted with Emmanuel Macron’s race in 2017) and winning the 2020 election.

They did replicate the effort. That same post described how, in 2020, Trump’s role in the bullshit disinformation was overt.

Trump, his sons, and his top influencers were all among a list of the twenty most efficient disseminators of false claims about the election compiled by the Election Integrity Project after the fact.

While some of the false claims Trump and his supporters were throttled in real time, almost none of them were taken down.

But the effort to throttle generally ended after the election, and Stop the Steal groups on Facebook proliferated in advance of January 6.

To this day, I’m not sure what would have happened had not the social media companies shut down Donald Trump.

And then, shortly thereafter, the idea was born for the richest man in the world to buy Twitter. Even his early discussions focused on eliminating the kind of moderation that served as a break in 2020. During that process, someone suspected of being Stephen Miller started pitching Elon Musk on how to bring back the far right, including “the boss,” understood to be Trump.

Musk started dumping money into Miller’s xeno- and transphobic political efforts.

Once Musk did take over Xitter, NGOs run by far right operatives, Republicans in Congress, and useful idiots coordinated to undercut any kind of systematic moderation.

As I laid out last year, the end result seemed to leave us with the professionalization and reach of 2020 but without the moderation. Allies of Donald Trump made a concerted effort to ensure there was little to hold back a flood of false claims undermining democracy.

Meanwhile, the far right, including Elon, started using the Nazi bar that Elon cultivated to stoke right wing violence here on my side of the pond, first with targeted Irish anti-migrant actions, then with the riots that started in Southport. I’ve been tracing those efforts for some time, but Rolling Stone put a new report on it out, yesterday.

Throughout, the main forum where right-wing pundits and influencers stoked public anger was X. But a key driver of the unrest was the platform’s owner himself, Elon Musk. He would link the riots to mass immigration, at one point posting that “civil war” in the U.K. was inevitable. He trolled the newly elected British prime minister, Keir Starmer — whose Labour Party won power in July after 14 years of Conservative rule — for supposedly being biased against right-wing “protesters.” After Nigel Farage, the leader of radical-right party Reform U.K. and Trump ally, posted on X that, “Keir Starmer poses the biggest threat to free speech we’ve seen in our history,” Musk replied: “True.”

Anything Musk even slightly interacted with during the days of violence received a huge boost, due to the way he has reportedly tinkered with X’s algorithm and thanks to his 200 million followers, the largest following on X. “He’s the curator-in-chief — he’s the man with the Midas touch,” says Marc Owen Jones, an expert on far-right disinformation and associate professor at Northwestern University in Qatar. “He boosted accounts that were contributing to the narratives of disinformation and anti-Muslim hate speech that were fueling these riots.”

Elon Musk, the richest man in the world, one of Trump’s most gleeful supporters, someone with troubling links to both China and Russia, has set up a one-stop shop: Joining false claims about the election with networks of fascists who’ll take to the streets.

With that in mind, I want to point to a number of reports on how disinformation has run rampant on Xitter.

The Center for Countering Digital Hate (one of the groups that Elon unsuccessfully sued) released a report showing that even where volunteers mark disinformation on Xitter, those Community Notes often never get shown to users.

Despite a dedicated group of X users producing accurate, well-sourced notes, a significant portion never reaches public view. In this report we found that 74% of accurate Community Notes on false or misleading claims about US elections never get shown to users. This allows misleading posts about voter fraud, election integrity, and political candidates to spread and be viewed millions of times. Posts without Community Notes promoting false narratives about US politics have garnered billions of views, outpacing the reach of their fact-checked counterparts by 13 times.

NBC described Elon’s personal role in magnifying false claims.

In three instances in the last month, Musk’s posts highlighting election misinformation have been viewed over 200 times more than fact-checking posts correcting those claims that have been published on X by government officials or accounts.

Musk frequently boosts false claims about voting in the U.S., and rarely, if ever, offers corrections when caught sharing them. False claims he has posted this month routinely receive tens of millions of views, by X’s metrics, while rebuttals from election officials usually receive only tens or hundreds of thousands.

Musk, who declared his full-throated support for Donald Trump’s presidential campaign in July, is facing at least 11 lawsuits and regulatory battles under the Biden administration related to his various companies.

And CNN described how efforts from election administrators to counter this flood of disinformation have been overwhelmed.

Elon Musk’s misinformation megaphone has created a “huge problem” for election officials in key battleground states who told CNN they’re struggling to combat the wave of falsehoods coming from the tech billionaire and spreading wildly on his X platform.

Election officials in pivotal battleground states including Pennsylvania, Michigan and Arizona have all tried – and largely failed – to fact-check Musk in real time. At least one has tried passing along personal notes asking he stop spreading baseless claims likely to mislead voters.

“I’ve had my friends hand-deliver stuff to him,” said Stephen Richer, a top election official in Arizona’s Maricopa County, a Republican who has faced violent threats for saying the 2020 election was secure.

“We’ve pulled out more stops than most people have available to try to put accurate information in front of (Musk),” Richer added. “It has been unsuccessful.”

Ever since former President Donald Trump and his allies trumpeted bogus claims of election fraud to try to overturn his loss to Joe Biden in 2020, debunking election misinformation has become akin to a second full-time job for election officials, alongside administering actual elections. But Musk – with his ownership of the X platform, prominent backing of Trump and penchant for spreading false claims – has presented a unique challenge.

“The bottom line is it’s really disappointing that someone with as many resources and as big of a platform as he clearly has would use those resources and allow that platform to be misused to spread misinformation,” Michigan Secretary of State Jocelyn Benson told CNN, “when he could help us restore and ensure people can have rightly placed faith in our election outcomes, whatever they may be.”

Finally, Wired explained how, last week, Elon’s PAC made it worse, by setting up a group of 50,000 people stoking conspiracy theories.

For months, billionaire and X owner Elon Musk has used his platform to share election conspiracy theories that could undermine faith in the outcome of the 2024 election. Last week, the political action committee (PAC) Musk backs took it a step further, launching a group on X called the Election Integrity Community. The group has nearly 50,000 members and says that it is meant to be a place where users can “share potential incidents of voter fraud or irregularities you see while voting in the 2024 election.”

In practice, it is a cesspool of election conspiracy theories, alleging everything from unauthorized immigrants voting to misspelled candidate names on ballots. “It’s just an election denier jamboree,” says Paul Barrett, deputy director of the Center for Business and Human Rights at New York University, who authored a recent report on how social media facilitates political violence.

[snip]

Inside the group, multiple accounts shared a viral video of a person ripping up ballots, allegedly from Bucks County, Pennsylvania, which US intelligence agencies have said is fake. Another account shared a video from conspiracy theorist Alex Jones alleging that unauthorized immigrants were being bussed to polling locations to vote. One video shared multiple times, and also purportedly from Buck County, shows a voter confronting a woman with a “voter protection” tag on a lanyard who tells the woman filming that she is there for “early vote monitoring” and asks not to be recorded. Text in the accompanying post says that there were “long lines and early cut offs” and alleges election interference. That post has been viewed more than 1 million times.

Some accounts merely retweet local news stories, or right-wing influencers like Lara Loomer and Jack Posobiec, rather than sharing their own personal experiences.

One account merely reshared a post from Sidney Powell, the disgraced lawyer who attempted to help Trump overturn the 2020 election, in which she says that voting machines in Wisconsin connect to the internet, and therefore could be tampered with. In actuality, voting machines are difficult to hack. Many of the accounts reference issues in swing states like Pennsylvania, Michigan, and Wisconsin.

This latter network includes all the same elements we saw behind the riots in the UK — Alex Jones, Trump’s fascist trolls, Russian spies (except Tommy Robinson, who just got jailed on contempt charges).

Now, in my piece last year, I suggested that Elon has diminished the effectiveness of this machine for fascism by driving so many people off of it.

The one thing that may save us is that this Machine for Fascism has destroyed Xitter’s core value to aspiring fascists: it has destroyed Xitter’s role as a public square, from which normal people might find valuable news. In the process, Elmo has destroyed Twitter’s key role in bridging from the far right to mainstream readers.

Maybe that’s true? Or maybe by driving off so many journalists Elon has only ensured that journalists have to go look to find this stuff — and to be utterly clear, this kind of journalism is some of the most important work being done right now.

But with successful tests runs stoking far right violence in Ireland and the UK, that may not matter. Effectively, Elon has made Xitter a massive version of Gab, a one-stop shop from which he can both sow disinformation and stoke violence.

On a near daily basis, DOJ issues warnings that some of this — not the false claims about fraud and not much of the violent rhetoric, but definitely those who try to confuse voters about how or when to vote — is illegal.

NBC describes that election officials are keeping records of the corrections they’ve issued, which would be useful in case of legal cases later. What we don’t know is whether DOJ is issuing notices of illegal speech to Xitter (they certainly did in 2020 — it’s one of the things Matt Taibbi wildly misrepresented), and if so, what they’re doing about it.

I am, as I have been for some time, gravely alarmed by all this. The US has far fewer protections against this kind of incitement than the UK or the EU. Much of this is not illegal.

Kamala Harris does have — and is using — one important tool against this. Her campaign has made a record number of contacts directly with voters. She is, effectively, sidestepping this wash of disinformation by using her massive network of volunteers to speak directly to people.

If that works, if Harris can continue to do what she seems to be doing in key swing states (though maybe not Nevada): getting more of her voters to the polls, then all this will come to a head in the aftermath, as I suspect other things may come to a head in the transition period, assuming Harris can win this thing. In a period when DOJ can and might act, the big question is whether American democracy can take action to shut down a machine that has been fine-tuned for years for this moment.

American law and years of effort to privilege Nazi speech have created the opportunity to build a machine for fascism. And I really don’t know how it’ll work out.

Update: Thus far there have been three known Russian disinformation attempts: a false claim of sexual abuse targeted at Tim Walz, a fake video showing votes in Bucks County being destroyed, and now a false claim that a Haitian migrant was voting illegally in Georgia.

This statement from Raffensperger, publicly asking Musk to take it down, may provide some kind of legal basis to take further steps. That’s the kind of thing that is needed to get this under control.

Update: I meant to include the Atlantic’s contribution to the reporting on Musk’s “Election Integrity Community;” it’s a good thing so many people are focused on Elon’s efforts.

Nothing better encapsulates X’s ability to sow informational chaos than the Election Integrity Community—a feed on the platform where users are instructed to subscribe and “share potential incidents of voter fraud or irregularities you see while voting in the 2024 election.” The community, which was launched last week by Musk’s America PAC, has more than 34,000 members; roughly 20,000 have joined since Musk promoted the feed last night. It is jammed with examples of terrified speculation and clearly false rumors about fraud. Its top post yesterday morning was a long rant from a “Q Patriot.” His complaint was that when he went to vote early in Philadelphia, election workers directed him to fill out a mail-in ballot and place it in a secure drop box, a process he described as “VERY SKETCHY!” But this is, in fact, just how things work: Pennsylvania’s early-voting system functions via on-demand mail-in ballots, which are filled in at polling locations. The Q Patriot’s post, which has been viewed more than 62,000 times, is representative of the type of fearmongering present in the feed and a sterling example of a phenomenon recently articulated by the technology writer Mike Masnick, where “everything is a conspiracy theory when you don’t bother to educate yourself.”

Both parties filed at least one lawsuit in Pennsylvania the other day. They suggest that Trump is seeking to create problems, not voters.

Trump and Republicans sued Bucks County for shutting down early voting (which in Pennsylvania amounts to filling out a mail-in ballot in person) three hours early the other day. As a result, the county was ordered to offer three more days of in-person early voting.

a) Declare that the Bucks County’s actions in turning away voters who sought to apply for a mail-in ballot and receive one in person before the deadline of 5:00 p.m. on October 29, 2024 violated the Pennsylvania Election Code,

b) Order the Bucks’ County Board of Elections to permit any persons who wish to apply for and receive a mail-in ballot to appear at the Elections Bureau office and do so during normal business hours before the close of business on October 30, 2024.

As a number of outlets have reported, Trump used this incident to claim voter fraud. But raising concerns and getting accommodations is, instead, how the system works.

Trump hasn’t complained about another problem in the state.

As Democrats allege in a suit against Erie County, one or two fairly major fuck-ups with their sent mail-in ballots, one stemming from their vendor, and another stemming from the postal service, have led to delays in a significant number of Erie voters getting their absentee ballots. The impact is significant: Erie’s 57% early turnout lags every other county save (gulp) Luzerne. And even though Democrats have returned their ballots at a much higher pace than Republicans — over 62% of Democrats as compared to 52% of Republicans, one of the biggest gaps in the state — there are still 9,000 outstanding Democratic ballots and 6,000 Republican ones.

Republicans may not be complaining because the differential still works out to a 3,000 vote advantage for them, in a bellwether county. Or maybe they’re simply not tracking their votes that closely.

Some of the boys purportedly in charge of Trump’s turnout have just discovered that women are voting at much higher rates than men, which has been evident for weeks.

In any case, the local Dems in Erie simply taking this in stride, finding a way to get their votes counted.

During an Oct. 24 public meeting of the Board of Elections, Sam Talarico, the head of the local Democratic Party, said his “only concern is about people who have not received their mail-in ballots yet. I’m one of them.”

In an interview on Wednesday, he said he had finally received his ballot on Monday and returned it the next day.

“I’m a little bit concerned, but I do know the county is doing everything they can to rectify the situation,” he said.

There’s a hearing on the Erie lawsuit today (though the most interesting Pennsylvania hearing will be the hearing in Philadelophia DA Larry Krasner’s effort to enjoin Elon Musk’s million dollar giveaways under Pennsylvania’s lottery law, for which Judge Angelo Foglietta ordered Elon Musk’s personal attendance).

Until then, it appears that Pennsylvania’s Democrats are simply going to work to turn out every single vote.

I first fell into the rabbit hole of the largely invisible appendix looking for Lee Chatfield.

At the time Trump called him and then-Michigan Senate Majority Leader Mike Shirkey to the White House in November 2020, Chatfield was Michigan’s House Speaker. And one of the first things that I realized about the appendix is that Jack Smith relied on Shirkey’s January 6 interview — exclusively, it seems. But he relied — again, exclusively — on DOJ’s own interview with Chatfield (which appears, in sealed form, at roughly pages GA 70 through GA 82). To confirm that that was Chatfield and try to puzzle through why Smith might rely on J6C interviews for some people but do his own interview for others, I took the trouble to index the identifiable interviews. Among other things, I discovered a third interview pertaining to Michigan, a witness whose name falls between Barr and Bowers (Michigan State Senator Tom Barrett also attended the meeting, but it could also be MI Secretary of State Jocelyn Benson), as well as about 36 pages of interview transcripts, from GA 323 to 359, from Ronna McDaniel.

My original hypothesis about why Smith did his own interview of Chatfield was probably wrong. Chatfield was indicted in Michigan for embezzlement in April, and I figured you’d want to lock in the testimony of someone who is in legal trouble himself. A more likely explanation is that Chatfield’s interview with J6C was considered informal, so Smith had to get more formal testimony.

But one thing it the additional interviews allowed Smith to do was sort through a seeming discrepancy about the meeting. As the January 6 Committee Report noted, Shirkey and Chatfield had slightly different memories of the event, with Shirkey denying that Trump made any precise ask, whereas Chatfield described that he understood Trump’s “directive” about having “backbone” to be a request to overturn the election by naming fake electors.

Although Shirkey says he did not recall the President making any precise “ask,” Chatfield recalled President Trump’s more generic directive for the group to “have some backbone and do the right thing.”157 Chatfield understood that to mean they should investigate claims of fraud and overturn the election by naming electors for President Trump.158 Shirkey told the President that he was not going to do anything that would violate Michigan law.159

157. Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Lee Chatfield (Oct. 15, 2021). Leader Shirkey did not remember any specific “ask” from the President during the Oval Office meeting. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Michael Shirkey, (June 8, 2022), p. 16 (“One thing I do remember is that he never, ever, to the best of my recollection, ever made a specific ask. It was always just general topics[.]”).

158. Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Lee Chatfield (Oct. 15, 2021).

159. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Michael Shirkey, (June 8, 2022), p. 57.

As it is, there’s something missing in this telling. The report describes that Rudy Giuliani was on the call. But it makes no mention that, even though she had specifically told Trump she couldn’t be involved in a meeting with legislators because it might amount to lobbying, he had patched Ronna McDaniel into the call.

That detail does appear in Mike Shirkey’s testimony (he claimed that she said nothing of substance). But Shirkey offered the detail of McDaniel’s participation long after Chatfield’s “informal interview” on October 15, 2021 and a week after McDaniel’s own interview on June 1, 2022, in which her participation in the call never came up.

Smith’s brief doesn’t say much about what McDaniel said, though this section does cite to what must be her interview. He did reveal that McDaniel made the initial contact with Shirkey and Chatfield, then got looped into the call after being warned against participating.

On November 20, three days before Michigan’s Governor signed a certificate of ascertainment appointing Biden’s electors based on the popular vote, the defendant met with [Mike Shirkey] and [Lee Chatfield], Michigan’s Senate Majority Leader and Speaker of the House, at the Oval Office.148 The defendant initiated the meeting by asking RNC Chairwoman [McDaniel] to reach out to [Chatfield] and gauge his receptivity to a meeting.149 The defendant also asked [McDaniel] to participate in the meeting, but [McDaniel] told him that she had consulted with her attorney and that she could not be involved in a meeting with legislators because it could be perceived as lobbying.150 After [McDaniel] made the first contact, on November 18, the defendant reached out to [Shirkey] and [Chatfield] to extend an invitation.151

Shirkey testified that Trump made no specific ask. But, as noted, Chatfield was more equivocal.

The January 6 Committee described Chatfield’s description of Trump’s calls in the following weeks.

That was not the end, however. Chatfield and Shirkey received numerous calls from the President in the weeks following the election. Chatfield told the Select Committee that he received approximately five to ten phone calls from President Trump after the election, during which the President would usually ask him about various allegations of voter fraud.161 Chatfield said that he repeatedly looked into the President’s claims but never found anything persuasive that could have changed the outcome of the election.162

But it doesn’t provide a detail about follow-up calls included in the immunity brief: That Rudy contacted Chatfield and asked him to throw out the valid votes.

Despite failing to establish any valid fraud claims, [Rudy] followed up with [Shirkey] and [Chatfield] and attempted to pressure them to use the Michigan legislature to overturn the valid election results. On December 4, [Rudy] sent a message to [Chatfield] claiming that Georgia was poised to do so (based on [Rudy’s] and [John Eastman’s] false advocacy there in the December 3 hearing) and asked [Chatfield] for help: “Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As [Eastman] explained they don’t just have the right to do it but the obligation. . . . Help me get this done in Michigan.”168 On December 7, [Rudy] attempted to send [Shirkey] a message (though failed because he typed the wrong number into his phone): “So I need you to pass a joint resolution from the Michigan legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.”169 Campaign operative [Mike Roman] was involved in the drafting of this message with the assistance of [P41] who was associated with the defendant’s Campaign efforts in Michigan.170 The following day, [Rudy] shared the draft with the defendant, sending it to his executive assistant, [Molly Michael], by email.

That’s a far more specific ask than Chatfield admitted to with J6C.

This passage is all sourced to an entirely sealed section of Appendix III, but the type of evidence included there is somewhat obvious. The section relies on:

• 168: A text to Chatfield
• 169: Something recording Rudy’s attempt to send a text (to the wrong phone number!) and 10 more pages documenting what message Rudy wanted to send.
• 170: One page showing some proof that Mike Roman and [P41] were involved in this messaging attempt.
• 171: Rudy sharing the draft with Trump, via Molly Michael.

It’s possible this evidence doesn’t include evidence obtained from Rudy’s phone in April 2021; for example, Smith could prove that Rudy missent the text via Rudy’s call data and the text to Chatfield, showing a very specific ask, could have come from Chatfield. The text to Shirkey could not have come from Shirkey, though, because he never received the message (which may be why Shirkey was much sketchier about any asks from Trump than Chatfield, because he didn’t receive this shamelessly direct ask).  But, particularly given that the email to Michael is just one page long (when asked, she provided no specifics about communications pertaining to Chatfield and Shirkey in her J6C interview), it may well have partly relied on that phone seizure and may well have been necessary.

If it came from the phone, though, it came from legal steps Lisa Monaco first put into motion on her first day on the job, months before J6C was even formalized.

Wherever it came from, the added detail could be utterly critical to proving the case against Trump. Before you get this additional evidence (from both Rudy’s and, possibly, Roman’s phone, as well as an email sent to Molly Michael), you’ve got Chatfield and Shirkey claiming Trump made no specific ask. After you get the additional evidence (and so long as you reach the bar of proving that Rudy was Trump’s co-conspirator in this nefarious effort), you have a very specific ask to just throw out the legal votes that Rayne and I and millions of other Michiganders cast for Joe Biden in 2020.



As you know, I’ve been tracking Kamala Harris’ outreach to Republicans, Liz Cheney above all, with a good deal of interest. I’ve spoken about why it makes sense from a demographic perspective; if Harris can attract some of Nikki Haley’s voters, it could put her over the top in these 50/50 states. I’ve described how seeing endorsements from people like Liz Cheney and her father create a permission structure for other Republicans to take the risk of voting for Harris.

More recently, I described that events with Liz Cheney and other Republicans provide a news hook for Trump’s fascism that cannot be dismissed as partisanship.

I’ve even observed (though perhaps only on social media) that events with Liz Cheney provide Harris a way to get out of an ethical dilemma. As Vice President, she should not discuss pending Federal cases against a criminal defendant, including the January 6 case charged against Trump. But Liz Cheney can. And Cheney happens to be an expert. In the events she did and is doing and still will do with Harris today, Cheney prosecuted the January 6 case against Donald Trump. And as she described how Trump sat, doing nothing, as his supporters attacked Congress, one of the people behind the women nodded vigorously.

But I also realized, as I watched the Michigan version of these events today, that Harris and Cheney are also modeling democracy. They are giving people — women who are my age and Cheney’s age and moderator Maria Shriver’s age are the primary but by no means the only target — what they want: a democracy where people talk to one another.

That is, these events, at their most ambitious, are about giving people a reason to defend democracy.

That’s something Harris said as she answered the last question in the Royal Oak event.

Shriver described several people in the audience talking about how scared they are, and she asked Harris how she copes with the stress.

Not eating gummies, Harris responded.

But then, after admitting she wakes up most nights these days, she gave an impromptu speech against despair.

Let me just speak to what people are feeling. We cannot despair. We cannot despair. You know, the nature of a democracy is such that I think there’s a duality. On the one hand, there’s an incredible strength when our democracy is intact. An incredible strength in what it does to protect the freedoms and rights of its people.

Oh there’s great strength in that.

And, it is very fragile. It is only as strong as our willingness to fight for it. And so that’s the moment we’re in. And I say do not despair because in a democracy, as long as we can keep it, in our democracy, the people — every individual — has the power to make a decision about what this will be.

And so let’s not feel powerless.

Let’s not let the — and I get it, overwhelming nature of this all make us feel powerless. Because then we have been defeated. And that’s not our character as the American people. We are not one to be defeated. We rise to a moment. And we stand on broad shoulders of people who have fought this fight before for our country. And in many ways then, let us look at the challenge that we have been presented and not be overwhelmed by it.

The baton is now in our hands, to fight for, not against, but for this country that we love. That’s what we have the power to do.

So let’s own that? Dare I say be joyful in what we will do in the process of owning that which is knowing that we can and will build community and coalitions and remind people that we’re all in this together.

Let’s not let the overwhelming nature of this strip us of our strength.

That’s how I feel about this.

The entire event is worth watching.

But what the Vice President said about despair may well be the nugget of inspiration that moves us forward.

I want to talk about Jared Wise.

Jared Wise is a former counterterrorism FBI Supervisory Special Agent who was arrested for crimes related to January 6 on May 1, 2023; he was indicted on civil disorder, assault, and trespassing charges on May 31, 2023.

In June, Wise moved to suppress a May 5, 2022 AT&T warrant and everything derivative of it, based on the theory that the warrant sought evidence of a conspiracy for which it had not presented probable cause (he is represented by Oregon’s very good FPD office). The same filing moved to suppress a photo obtained in an April 2023 traffic stop that occurred just weeks before a search of his residence. Finally, it aimed to suppress the search of his home based, in part, on staleness grounds. Then last month, Wise supplemented his suppression motion, this time arguing that a tower dump warrant obtained in January 2021 was an unconstitutional geofence warrant under a recent Fifth Circuit decision.

I took the time to read all this because I’ve been tracking the geofence challenges that come out of the January 6 investigation (see here, here, here, here, here, here) and also because I’m fascinated by the former law enforcement types who ended up attacking the Capitol. But between the government’s initial response and the response, submitted yesterday, to his supplement, they provide a fascinating picture of the FBI’s investigation into one of their own.

The government’s response argues this is not about a geofence at all. Rather, the warrant Wise claims was a geofence was instead a tower dump warrant targeting two towers that exclusively serve the interior of the Capitol, basically a search for business records of access to a cell phone tower rather than location data offered up in response to a voluntary Google service.

The filings together present this timeline of the investigation into Wise.

January 22, 2021 tower dump warrant

April 18, 2021 query of tower dump returns

October 2021 final conversation between Wise and tipster

January 10, 2022 public tip regarding Wise

January 26, 2022 interview in which tipster reveals Wise told him he was at the Capitol

May 5, 2022 AT&T warrant for 1752 and 5104 from November 1, 2020 through February 1, 2021: Disclosed Wise made 62 calls and sent 46 text messages on January 6

November 23, 2022 AT&T warrant for 1752 and 5104 from November 3, 2020 through January 31, 2021: Shows Wise still using phone

April 2, 2023 traffic stop on suspicion of altered VIN

April 12 and 13, 2023 warrant, issued in CAED but never executed

April 18 warrant shows Wise still using phone

April 24, 2023 warrant for Wise’s house, car, and person for 1752, 5104, 1512(c)(2), 111, 231, 371, 372: On May 1, FBI seizes:

• Apple iPhone
• Apple MacBook Pro
• Burner LG Phoenix 5 (unopened)
• Clothing from riot

His phone number was collected in the tower dump, but he attracted no individualized attention until someone narced him out in January 2022, at which point they found the cell phone records that he had been in the building during the 2PM hour on January 6.

At first, the FBI only obtained information to support the two trespassing charges, 1752 and 5104, used with all January 6 suspects. But the affiant of that warrant described that a search might find “help identify co-conspirators or victims,” which is why Wise claimed that this warrant was, “a fishing expedition, hoping to find some evidence of conspiracy when there is no probable cause to believe that one exists.” But, the government noted in response, at that point “the warrant authorized the seizure only of evidence related to the noted offenses.” While the second warrant, dated November 23, 2022, remained focused on the trespassing charges, it noted that,

I know that many persons who came to the Capitol on January 6, 2021, engaged in planning between the time of the November 2020 election and January 6, 2021, and that they communicated with other like-minded individuals about their purpose in coming to the Capitol using their smartphones.

Things got more interesting when — at least as described — a California Highway Patrol officer stopped Wise in April 2023, weeks before a warrant would be issued for his arrest, because the color on his registration did not match the color of the vehicle and, partly because of Wise’s Texas plates, the officer suspected VIN swapping.

The officer decided to make a traffic enforcement stop of the vehicle based on the registration return, which indicated the car’s color was blue, rather than what the officer observed to be grey. The officer knew, based on his training and experience, that there are many vehicles in the state of California that have had their Vehicle Identification Number (VIN) switched in Texas.

Wise undoubtedly believed this was a pretext stop — a stop invented solely to collect information from a suspect. As a former CT officer, he would know how they are used. And so after the officer freed him to leave, Wise got out of his car and started filming the officer.

But after he was told he was free to leave, the defendant became verbally aggressive and irritated with the officer. The defendant insisted he was stopped unlawfully and said there was another reason why the officer made the traffic stop. The officer continued to advise the defendant of the reason for the stop and told him multiple times the stop was over and that he was “free to leave.” As the officer returned to his patrol vehicle, the defendant exited his vehicle, carrying his cell phone, and appeared to be recording the officer and his vehicle. The defendant approached the officer in a slightly aggressive manner and continued to appear upset that he was stopped. The defendant requested the officer’s name and badge number, which the officer then provided. The officer again advised the defendant that the traffic stop was over and he was free to leave. After approximately two minutes, the defendant returned to his vehicle and departed.

That’s when the officer got the picture of Wise’s car, which was used in the affidavit to search Wise’s house, car, and person.

But even if the defendant’s traffic stop was improper, there was no seizure at the time the relevant photograph of the defendant was taken. Indeed, the opposite was true. The traffic stop was conducted, the defendant’s license and registration were checked and returned, and the defendant was told he was free to leave. It was over. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.”); United States v. Maynard, 615 F.3d 544, 553 (D.C. Cir. 2010) (holding that the seizure of the defendant was over after the defendant’s license and registration was returned and he was told he was free to leave), aff’d in part sub nom. United States v. Jones, 565 U.S. 400 (2012). But the defendant did not leave. Instead, after being repeatedly told he was free to leave, the defendant—who has, in other filings, opined that he is in a “unique position to admonish law enforcement,” ECF No. 33 at 32 n.8—chose to exit his vehicle, pull out his cell phone, and start recording the officer who had stopped him. It was then that the photograph subsequently used in the search warrant—seen below—was taken. In other words, the defendant voluntarily remained to reprimand a police officer, and now complains when the officer happened to document the scene using a police-issued cruiser camera.

The traffic stop’s inclusion in these suppression motions is, legally, superfluous. The government compellingly argues that they got the probable cause information to search the vehicle via other means, including surveillance of Wise and a different picture of his vehicle.

The April 2023 affidavit recites facts tying the vehicle to the defendant: it identifies the vehicle as being registered to the defendant, see Exhibit D at ¶ 2, and it cites surveillance confirming the vehicle’s presence at the defendant’s residence, see Exhibit D at ¶ 56. But the affidavit never even mentions the April 2, 2024 traffic stop. See generally Exhibit D. Instead, the pertinent photograph appears as part of an attachment identifying the vehicle to be searched. See Exhibit D at Attachment A. That attachment states “[t]he Vehicle is depicted below” and includes two photographs—only one of which is from the traffic stop.

More importantly, nothing was seized from Wise’s car; there are no fruits of a search to suppress.

On the Fourth Amendment question, this dispute appears to arise from confusion about different technologies and therefore different probable cause formulas. Some of the confusion stems from temporal lapses between the execution of a warrant and queries of data obtained from it.

But what really appears to be going on is that a very paranoid former FBI guy, one who called cops “Nazis” on January 6, believes the FBI is or was investigating him more broadly. He believed in real time and still believes (and he may be right) that when a cop stopped him during his trip to California in April 2023, it was a pretext stop designed to collect more information; there are a good number of other January 6 defendants in which such stops were used.

Ultimately, Wise came to believe “they” were out to get him, “they” were out to investigate a larger conspiracy.

In the end, they were! The search of his house included two conspiracy charges, 371 and 372, among the suspect crimes.

But instead, he’s facing two civil disorder charges for his own actions, allegedly attacking cops.

When I saw the news that Trump is planning a rally at Madison Square Garden — as the Nazis did in 1939 — I checked the date to see whether that was before or after Steve Bannon gets out of prison.

Bannon is due to get out on October 29; the rally is two days earlier, on October 27. On the current schedule, Bannon will be released nine days before the election, but not soon enough to attend what will undoubtedly be a larger version of the Nazi rant that Trump put on in Aurora the other day. Unless something disrupts it, Bannon will start trial for defrauding Trump supporters on December 9, days before the states certify the electoral vote.

This is the kind of timing I can’t get out of my head. According to FiveThirtyEight, Kamala Harris currently has a 53% chance of winning the electoral college. That’s bleak enough. But based on everything I know about January 6, I’d say that if Trump loses, there’s at least a 10% chance Trump’s fuckery in response will have a major impact on the transfer of power.

Experts on right wing extremism are suggesting the same thing. Here’s an interview Rick Perlstein did with David Neiwert back in August on the political violence he expects. Here’s a report from someone who infiltrated the 3 Percenters, predicting they would engage in vigilanteism.

Will Jack Smith unveil charges about inciting violence amid election violence?

As I wrote in this post, I suspect that Jack Smith considered, but did not, add charges when he decided to supersede Trump’s January 6 indictment. As I wrote, there is negative space in Smith’s immunity filing where charges on Trump’s funding for January 6 (and subsequent suspected misuse of those funds) might otherwise be.

More tellingly, there are four things that indicate Jack Smith envisioned — but did not yet include — charges relating to ginning up violence. As Smith did in a 404(b) filing submitted in December, he treated Mike Roman as a co-conspirator when he exhorted a colleague, “Make them riot” and “Do it!!!” Newly in the immunity filing, he treated Bannon as a co-conspirator, providing a way to introduce Steve Bannon’s prediction, “All Hell is going to break loose tomorrow!” shortly after speaking with Trump on January 5.  But Smith didn’t revise the indictment to describe Roman and Bannon as CC7 and CC8; that is, he did not formally include these efforts to gin up violence in this indictment. What appears to be the same source for the Mike Roman detail (which could be Roman’s phone, which was seized in September 2022; in several cases it has taken a year to exploit phones seized in the January 6 investigation) also described that Trump adopted the same tactic in Philadelphia.

The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22

Even more notably, after saying (in that same December 404(b) filing) that he wanted to include Trump’s endorsement and later ratification of the Proud Boys’ attack on the country to “demonstrate[] the defendant’s encouragement of violence,” Smith didn’t include them in the immunity filing whatsoever — not even in the section where the immunity filing described Trump’s endorsement of men who assaulted cops. If I’m right that Smith held stuff back because SCOTUS delayed his work so long it butted into the election season, it would mean he believes he has the ability to prove that Trump deliberately stoked violence targeting efforts to count the vote at both the state and federal level, but could not lay that out until after November 5, after which Trump may be in a position to dismiss the case entirely.

And the two Stephens — Bannon, whose War Room podcast would serve to show that Trump intended to loose all Hell on January 6, and Miller, who added the finishing touches to Trump’s speech making Mike Pence a target for that violence — appear to have a plan to do just that, working in concert with Elon Musk.

The two Stephens say Trump must be able to stoke violence with false claims as part of his campaign

As I laid out in June, just as Bannon was reporting to prison, both Stephens were arguing that they had a right to make false claims that had the effect of fostering violence.

Bannon filed an emergency appeal aiming to stay out of prison arguing he had to remain out so he could “speak[] on important issues.”

There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.

No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.

That claim came just after he had given a “Victory or Death” speech at a Turning Point conference.

In the same period, Stephen Miller attempted to intervene in Jack Smith’s efforts to prevent Trump from making false claims that the FBI tried to assassinate him when they did a search of his home governed by a standard use-of-force policy, knowing full well he was gone. (Aileen Cannon rejected Miller’s effort before she dismissed the case entirely.)

Miller argued that the type of speech that Smith wanted to limit — false claims that have already inspired a violent attack on the FBI — as speech central to Trump’s campaign for President.

The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.

Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.

Miller called Trump’s false attack on the FBI peaceful political discourse.

Importantly, Miller dodged an argument Smith made — that Trump intended that his false claims would go viral. He intended for people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignored the exhibit showing Bannon parroting Trump’s false claim on his War Room podcast.

It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.

Note, Bannon did this with Mike Davis, a leading candidate for a senior DOJ position under Trump, possibly even Attorney General, who has vowed to instill a reign of terror in that position.

But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.

Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.

Back in June, Bannon said he had to remain out of prison because he played a key role in Trump’s campaign. And Miller said that even if Bannon deliberately parroted Trump’s false incendiary claims, that was protected political speech as part of Trump’s campaign.

Miller helps eliminate checks on disinformation and Nazis on Xitter

But this effort has been going on for years.

A report that American Sunlight released this week describing how systematically the right wing turned to dismantling the moderation processes set up in the wake of the 2016 election points to Miller’s America First Legal’s role in spinning moderation by private actors as censorship. Miller started fundraising for his effort in 2021.

[F]ormer Trump Senior Advisor Stephen Miller[] founded America First Legal (AFL). 6 An unflinchingly partisan organization, the home page of AFL’s website claims its mission is to “[fight] back against lawless executive actions and the Radical Left,” 7 which it accomplishes through litigation. AFL has, to date, engaged in dozens of efforts to silence disinformation research through frivolous lawsuits and collaboration with Jordan and the House Judiciary Committee’s harassment of researchers. In a digital age where social media is more prevalent than ever and social media platforms have more power than ever, AFL’s efforts to politicize legitimate efforts to combat disinformation – by social media platforms and independent private-citizen researchers – have significantly damaged the information environment. To fully realize these efforts and their impacts, we explore the founding and operations of AFL.

[snip]

After its launch in early 2022, AFL began its line of litigation with a series of FOIA requests relating to the State Department’s Global Engagement Center (GEC) and the Cybersecurity and Infrastructure Security Agency (CISA). These requests marked a noticeable uptick in conservative claims about censorship. AFL’s FOIA requests alleged these government agencies improperly partnered with social media platforms and asked for content around Hunter Biden’s laptop to be removed. 22 In its FOIA request to CISA, AFL writes 23 :

On March 17, 2022, the New York Times revealed that “[Hunter] Biden’s laptop was indeed authentic, more than a year after … much of the media dismissed the New York Post’s reporting as Russian disinformation.” When the story was first accused of being disinformation, X/Twitter suspended the New York Post’s account for seven days, and Facebook “’reduc[ed]’ the story’s distribution on its platform while waiting for third-party fact checkers to verify it.” This was just one of many instances where social media companies censored politically controversial information under the pretext of combatting MDM even when the information later became verified.

Then, as now, AFL offered no evidence to support its claim that any federal agency coerced, pressured, or mandated that social media platforms remove any such laptop-related content. As this report will cover in depth, social media platforms have their own, robust content moderation policies in regards to false and misleading content; as private companies, they implement these policies as they see fit.

The American Sunlight report describes how some of the key donations to AFL were laundered so as to hide the original donors (and other of its donations came from entities that had received the funds Trump raised in advance of January 6).

But as WSJ recently reported, Musk started dumping tens of millions into Miller’s racist and transphobic ads no later than June 2022.

In the fall of 2022, more than $50 million of Musk’s money funded a series of advertising campaigns by a group called Citizens for Sanity, according to people familiar with his involvement and tax filings for the group. The bulk of the ads ran in battleground states days before the midterm elections and attacked Democrats on controversial issues such as medical care for transgender children and illegal immigration.

Citizens for Sanity was incorporated in Delaware in June 2022, with salaried employees from Miller’s nonprofit legal group listed as its directors and officers.

There are questions of whether Miller grew close to Musk even before that.

In the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller — texted Musk personally to raise the sensitivities of restoring Trump, whom the person called, “the boss,” to Xitter.

And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.

“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.

Whoever this was — and people were guessing it was Miller in real time — someone close enough to Elon to influence his purchase of Xitter was thinking of the purchase in terms of bringing back “right wingers,” including Trump.

Yesterday, the NYT reported on how the far right accounts that Musk brought back from bannings have enjoyed expanded reach since being reinstated. Some of the most popular accounts have laid the groundwork for attacking the election.

As the election nears, some of the high-profile reinstated accounts have begun to pre-emptively cast doubt on the results. Much of the commentary is reminiscent of the conspiracy theories that swirled after the 2020 election and in the lead-up to the Jan. 6 riot.

Since being welcomed back to the platform, roughly 80 percent of the accounts have discussed the idea of stolen elections, with most making some variation of the claim that Democrats were engaged in questionable voting schemes. Across at least 1,800 posts on the subject, the users drew more than 13 million likes, shares and other reactions.

Some prominent accounts shared a misleading video linked to the Heritage Foundation, a conservative think tank, that used shaky evidence to claim widespread voter registration of noncitizens. One of the posts received more than 750,000 views; Mr. Musk later circulated the video himself.

But it’s more than just disinformation. Xitter has played a key role in stoking anti-migrant violence across the world. In Ireland, for example, Alex Jones’ magnification of Tommy Robinson’s tweets helped stoke an attack on a shelter for migrants.

As with mentions of Newtownmountkennedy, users outside of Ireland authored the most posts on X mentioning this hashtag, according to the data obtained by Sky News. 57% were posted by accounts based in the United States, 24.7% by Irish users. A further 8.8% were attributed to users based in the United Kingdom.

While four of the top five accounts attracting the most engagement on posts mentioning this hashtag were based in Ireland, the fifth belongs to Alex Jones, an American media personality and conspiracy theorist. Jones’s posts using this hashtag were engaged with 10,700 times.

Jones continued to platform Robinson as he stoked riots in the UK.

Several high-profile characters known for their far-right views have provided vocal commentary on social media in recent days and have been condemned by the government for aggravating tensions via their posts.

Stephen Yaxley-Lennon, who operates under the alias Tommy Robinson, has long been one of Britain’s most foremost far-right and anti-Muslim activists and founded the now-defunct English Defence League (EDL) in 2009.

According to the Daily Mail, Robinson is currently in a hotel in Cyprus, from where he has been posting a flurry of videos to social media. Each post has been viewed hundreds of thousands of times, and shared by right-wing figures across the world including United States InfoWars founder Alex Jones.

And Elon Musk himself famously helped stoke the violence, not just declaring civil war to be “inevitable,” but also adopting Nigel Farage’s attacks on Keir Starmer.

On Monday, a spokesperson for UK Prime Minister Keir Starmer addressed Musk’s comment, telling reporters “there’s no justification for that.”

But Musk is digging his heels in. On Tuesday, he labeled Starmer #TwoTierKier in an apparent reference to a debunked claim spread by conspiracy theorists and populist politicians such as Nigel Farage that “two-tier policing” means right-wing protests are dealt with more forcefully than those organized by the left. He also likened Britain to the Soviet Union for attempting to restrict offensive speech on social media.

In the UK, such incitement is illegal. But it is virtually impossible to prosecute in the United States. So if Elon ever deliberately stoked political violence in the US, it would be extremely difficult to stop him, even ignoring the years of propaganda about censorship and the critical role some of Musk’s companies play in US national security.

Bannon’s international fascist network

The ties to Nigel Farage go further than Xitter networks.

In a pre-prison interview with David Brooks (in which Brooks didn’t mention how Bannon stands accused of defrauding Trump’s supporters in his New York case), Bannon bragged about turning international fascists into rocks stars.

STEVE BANNON: Well, I think it’s very simple: that the ruling elites of the West lost confidence in themselves. The elites have lost their faith in their countries. They’ve lost faith in the Westphalian system, the nation-state. They are more and more detached from the lived experience of their people.

On our show “War Room,” I probably spend at least 20 percent of our time talking about international elements in our movement. So we’ve made Nigel a rock star, Giorgia Meloni a rock star. Marine Le Pen is a rock star. Geert is a rock star. We talk about these people all the time.

And in August, Bannon’s top aide, Alexandra Preate, registered as a foreign agent for Nigel Farage. She cited arranging his participation in:

• A March 2023 CPAC speech
• Discussions, as early as August 2023, about a Farage speech at RNC
• A January 2024 pitch for Farage to speak at a Liberty University CEO Summit that was held last month
• Talks at “Sovereignty Summits” in April through July
• April arrangements for a May 1 talk at Stovall House in Tampa, Florida
• Discussions in May about addressing CPAC in September
• May 2024 media appearances on the Charlie Kirk Show, Fox Business Larry Kudlow show, Bannon’s War Room, Seb Gorka Show, Newsmax, WABC radio
• More discussions about Farage’s attendance at the RNC
• Early August discussions about an upcoming trip to the US

That is, Preate retroactively registered as Farage’s agent after a period (July to August) when he was spreading false claims that stoked riots in his own country.

Preate also updated her registration for the authoritarian Salvadoran President, Nayib Bukele (which makes you wonder whether she had a role in this fawning profile of Bukele).

Miller serves as opening act for Trump’s Operation Aurora

Before Trump’s speech in Aurora, CO the other day — at which he spoke of using the Alien and Sedition Act against what he deemed to be migrants — Stephen Miller served as his opening act, using the mug shots of three undocumented immigrants who have committed violent crimes against American women to rile up the crowd, part of a years-long campaign to falsely suggest that migrants are even as corrupt as violent as white supremacists.

Stephen Miller started laying the infrastructure to improve on January 6 from shortly after the failed coup attempt (and he did so, according to the American Sunlight report, with funds that Trump may have raised with his Big Lie). In recent weeks, Trump — with Miller’s help — has undermined the success of towns in Ohio and Colorado with racial division and has led his own supporters hard hit by hurricanes to forgo aid to which they’re entitled with false claims that Democrats are withholding that aid.

By targeting people like North Carolina Governor Roy Cooper and Kamala Harris, Trump is targeting not just Democrats, but also people who play a key role in certifying the election.

If Cooper and Harris were incapacitated before they played their role in certifying the election, they would be replaced by Mark Robinson and whatever president pro tempore a Senate that is expected to have a GOP majority after January 4 chooses, if such a choice could be negotiated in a close Senate in a few days.

And all the while, the richest man in the world, who claims that he, like Steve Bannon and Donald Trump, might face prison if Vice President Harris wins the election, keeps joking about assassination attempts targeting Harris.

We have just over three weeks to try to affect the outcome on November 5 — to try to make it clear that Trump will do for America what he has done in Springfield, Aurora, and Western North Carolina, deliberately made things worse for his own personal benefit. But at the same time, we need to be aware of how those efforts to make things worse are about creating a problem that Trump can demand emergency powers to solve.

“He gets played by them, because he thinks that they’re his friends and they are manipulating him full time … with flattery.” Kamala Harris

Here’s how WSJ described the Bob Woodward scoop that Donald Trump sent COVID testing equipment to Vladimir Putin rather than to Americans in need.

Woodward reports that one former intelligence analyst specializing in Russian affairs believed that Trump idolized Putin, making him open to manipulation. During the outbreak of Covid-19 in Russia, Trump secretly sent Putin some Abbott Point of Care Covid test machines for Putin’s personal use.

Putin then asked Trump never to mention it to anyone else, Woodward reports. “I don’t care,” Trump replied. “Fine.”

“No, no,” Putin said. “I don’t want you to tell anybody because people will get mad at you, not me. They don’t care about me.”

In this telling, there’s an intelligence analyst involved, someone who could be Woodward’s source.

It’s not just that Trump secretly sent Putin medical equipment that Americans needed. It’s that, presumably knowing full well the Intelligence Community would learn of that gift, Putin told Trump to keep it secret. “I don’t care,” Trump claimed. But he kept his KGB handler’s secret anyway.

He’s still trying to keep it secret.

You don’t need an intelligence analyst to tell the story of how easy it is for Vladimir Putin to manipulate Donald Trump. After all, HR McMaster documented Trump’s subjugation to Putin at length.

I was the principal voice telling him that Putin was using him and other politicians in both parties in an effort to shake Americans’ confidence in our democratic principles, institutions and processes. Putin was not and would never be Trump’s friend. I felt it was my duty to point this out.

[snip]

Trump wanted to call Putin to congratulate him on being elected to a fourth term as president of Russia. I explained that Putin’s victory had been rigged, thanks to the Kremlin’s control over the media, its quelling of the opposition, the disqualification of popular opposition candidates such as Alexei Navalny, and restrictions on election monitors.

A call was arranged anyway. The day before it, I told Trump I knew he was going to congratulate Putin, but that he should know that “the Kremlin will use the call in three ways: to say that America endorsed his rigged election victory, to deflect growing pressure over the Salisbury nerve agent attack and to perpetuate the narrative that you are somehow compromised.” I then asked Trump the following: “As Russia tries to delegitimize our legitimate elections, why would you help him legitimize his illegitimate election?”

But at this stage in our relationship, my advice on Putin and Russia had become pro forma. I knew that Trump would congratulate Putin and go soft on Salisbury. Trump took the early morning call from the residence. Because I had briefed him the day before, I listened in from my office. As expected, he congratulated Putin up front. After the call, Trump asked me, as he had before, to invite Putin to the White House.

On Face the Nation, McMaster described that he included all this in his book to try to demonstrate to Trump (or at least his hypothetical handlers in a second term) how successfully Putin was manipulating him.

MARGARET BRENNAN: When you got home, you said to your wife, “After [over] a year in this job, I cannot understand Putin’s hold on Trump.” How do you explain that now?

LT. GENERAL H.R. MCMASTER: Well, I explained it in the book. I try to place the president’s belief that he could have a good deal with Vladimir Putin in context of the two previous presidents who thought that they could have a good deal with- with Putin. But also, you know, President Trump, and people know this, he- he likes big splashy deals. He liked- he was pursuing that with Putin. He was pursuing that with Xi Jinping. And of course, Putin is the best liar in the world. And so I struggled, Margaret, should I write about how Putin tried to manipulate President Trump, or not? And I thought, well, Putin knows how he was trying to do it. So maybe in writing about how Putin was trying to press Donald Trump’s buttons, that will make a future President Trump, if he’s elected, less susceptible to those kind of tactics.

There’s been a lot of discussion about whether the intelligence community knows what a simp for Putin Trump is, knows about his ongoing calls with Putin.

The mention of the analyst at least suggests that the IC learned about the COVID testing equipment in real time, which is not surprising given that the equipment would have to be shipped somehow. Importantly, Trump’s KGB handler Vladimir Putin surely knew that it would be discovered. I’m sure the COVID testing kits were nice for Putin to have. The fact that Putin got Trump to prioritize Putin’s health over Americans, the fact that by keeping this secret, Putin ratcheted up the hold he had on Trump were probably far bigger gifts.

And that’s why I think Putin’s instructions to keep this secret are as important as the fact that Trump made efforts to care for Putin’s health as he neglected hundreds of thousands of Americans. It’s the control over all this information that Trump keeps ceding to Putin. As Asha Rangappa noted, Trump just keeps handing Putin ways to control him, willingly.

And now Putin is picking and choosing which of the secrets he has with Donald Trump he’ll make public. Oh sure, he sent me medical equipment at a time when Americans were struggling, Putin is effectively saying. But phone calls?!?! The seven phone calls that are bloody obvious from his claims about speaking to me about my dreams? Nyet! No phone calls, they didn’t happen!!

These tailored denials, hilariously, come from Dmitry Peskov, the guy whose call Trump and Michael Cohen criminally conspired to hide, the likely source for the false claim that appeared in the Steele dossier that the call to the Kremlin Cohen and Trump were hiding was not about real estate in January 2016, but was instead about cheating in an election in October 2016.

That is, I’ve long argued, one of the ways Putin has been wildly successful: not just getting Trump to simper to him like a teenager with a crush, but also to use Trump’s paranoia to heighten conflict in the United States over Trump’s ties to Russia.

Indeed, while Trump would have been preferable for Russia based on policy stances alone, Russia would prefer a weak Trump they could manipulate over a strong Trump any day. By the time of the 2016 operation, Vladimir Putin had already exhibited a willingness to take huge risks to pursue Russian resurgence. Given that audacity, Trump was more useful to Putin not as an equal partner with whom he could negotiate, but as a venal incompetent who could be pushed to dismantle the American security apparatus by playing on his sense of victimhood. Putin likely believed Russia benefitted whether a President Trump voluntarily agreed to Russia’s policy goals or whether Putin took them by immobilizing the US with chaos, and the dossier protected parts of the ongoing Russian operation while making Trump easier to manipulate.

Just as one example, Vladimir Putin knew the FBI was getting recordings of Sergey Kislyak’s calls with Mike Flynn — there’s even a moment when Kislyak’s assistant performs for the wiretap back on December 29, 2016. Putin knew that when he didn’t respond to Obama’s sanctions, the spooks would find those calls, leading to all manner of disruption for the US.

And that created a cascade of ongoing benefits for Putin, as Trump keeps denying Russia Russia Russia that he needed Russia’s help to win, and so keeps doubling and tripling down on his denials, even as he makes his capitulation to Putin readily apparent.

Russia’s 2016 intelligence operation and its aftermath may be the most successful intelligence operation in recent history, because Vladimir Putin has gotten Trump to believe that his KGB handler is hiding the proof he’s got of how weak Trump is, and Trump is desperate, to the core of his being, to pretend that his weakness is not obvious to all.

Update: Going to reup what I wrote just weeks after Helsinki.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean.

There are a number of laugh-in-his-face funny things about Elie Honig’s column bitching that Jack Smith submitted his immunity filing before the election. First, for years Honig whined and moaned that the January 6 investigation would never reach the Willard Hotel, which was, in the opinion he formed without examining much of the evidence, the only way it would reach Trump.

Well, now the court filings have incorporated the Willard, yet Honig seems not to have noticed (but then, he has never exhibited much awareness of what’s actually in court filings).

More importantly, I strongly suspect that this filing does reflect the impact of DOJ policy prohibiting major actions in the three months leading up to an election.

That is, I suspect that Jack Smith considered making more substantive tweaks to the superseding indictment against Trump, but did not because of the DOJ prohibition. This is, to be clear, speculation. But the speculation rests, in part, on what we see in the court filings.

Start with this detail: When Jack Smith asked for a three week extension to submit a status report on August 8 — three weeks that he predictably used to supersede the indictment — he didn’t say he needed the time to present the case to a new grand jury. Rather, he said he needed the time to consult with other parts of DOJ.

The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.

And while I think it likely that Smith did consult with OLC, the Solicitor General, and the prosecutors at DC USAO who are superseding other accused January 6 criminals charged with 18 USC 1512(c)(2) about the content of his indictment, that’s not even what he said he was consulting about.

He said he was consulting about “the most appropriate schedule” to brief certain issues regarding the decision. He said he was consulting about DOJ rules, regulations, and policies.

The one DOJ policy pertaining to timing is precisely the one Honig is so upset about: the one prohibiting criminal charges or statements that might give an advantage or disadvantage to a particular candidate.

9-85.500 Actions that May Have an Impact on an Election

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.

But as many people rebutted Honig, this pertains to stuff DOJ controls, like indictments, not to things a judge controls, like the briefing Judge Chutkan ordered, briefing about an indictment charged 14 months ago.

Tellingly, Honig didn’t bitch when Jack Smith superseded the indictment against Trump less than 90 days before the election. That’s probably because the indictment involved minor changes, mostly subtractions. Smith eliminated Jeffrey Clark’s conduct entirely, added language to emphasize Mike Pence’s role as Trump’s running-mate, and focused more closely on the fraudulent vote certifications Trump and his co-conspirators created. Honig didn’t opine that that more limited indictment would have required DOJ approval or violated pre-election rules.

The other reason I suspect that Smith considered, but did not, make more substantive changes to the indictment is what appears and doesn’t appear in the immunity filing.

First, as I alluded to the other day, there’s an asymmetry in how DOJ discusses Trump’s January 4 speech in Georgia and his January 6 speech. Regarding the former, prosecutors spend an entire paragraph laying out the fundraising emails Trump sent in advance of the Georgia speech, using those emails to argue that the speech was a campaign event.

Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators [Loeffler] and [Perdue]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.”570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators [Loeffler] and [Perdue] to DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“‘the Left”] from taking over.”572 Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [Loeffler] and [Perdue]. The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573?

It’s far more important to persuade Judge Chutkan that the January 6 speech was a campaign event. Yet, even though the filing spends three pages describing the “significant similarities” between the Georgia speech and the January 6 one, there’s no parallel argument that Trump fundraised off the January 6 speech. Indeed, there’s no other discussion of fundraising whatsoever in this filing, which is rather surprising given how Trump used his fundraising emails to cement The Big Lie. And we know that there was fundraising directly tied to the January 6 speech. As the January 6 Committee noted, the last email went out just as rioters breached the Capitol. J6C dedicated an appendix to both the legally sanctionable claims Trump made in fundraising emails and to ways Trump used the money raised to pay other bills, things other than what he told his rubes he would spend it on.

The easiest way to hold Trump accountable for January 6 in such a way that doesn’t remotely implicate presidential immunity would be to charge him for fundraising fraud, adopting the same model SDNY used to charge Steve Bannon and his co-conspirators for fundraising off the wall Trump never built. But there’s not a hint of that in the indictment currently before Judge Chutkan. The fact that prosecutors didn’t include the fundraising directly tied to January 6, even though it would help ensure they got to use the January 6 speech at trial, suggests they may be withholding it to use in some other way.

A still more obvious thing missing from the immunity filing is the Proud Boys.

Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]

But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.

To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.

In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484

But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.

Unless you were holding them in reserve.

The immunity filing does include the other key focus of that December 404(b) filing, though: Mike Roman’s elicitation of a riot at TCF Center in Detroit.

In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, [Mike Roman]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is] right,”[Roman] responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22 [my emphasis]

Notably, that section of the immunity filing repeats something the 404(b) notice did: it called Roman — like Bannon — an unindicted co-conspirator, even though in the introduction of the immunity filing, it described him as an “agent” along with the other three main campaign operatives.

The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.

[seven lines redacted]

The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results. [my emphasis]

As it did with Steve Bannon, the immunity filing called Roman a co-conspirator, without giving him a substitution, CC.

They’re both just “persons.”

At least in substitutions used in this filing.

Here’s why that’s especially interesting. As I noted in this post, the only evidentiary reason to describe Bannon as a co-conspirator is to introduce his words via hearsay exception, without requiring him to testify.

Some of what he said (bolded below), he said on texts to Boris Epshteyn, who was already treated as a co-conspirator, so those texts could come in anyway.

1. October 31: “He’s gonna declare himself a winner.” J6C (Originally sourced to MoJo)
2. November 13: “Trump just fired.”
3. December 13: Bannon resumes daily contact.
4. December 14: Alternate electors. J6C
5. January 2: “The Vice President’s role is not “ministerial.” J6C
6. January 2: Trump wanted Pence briefed by Eastman immediately.
7. January 4: Pre-Pence Willard Hotel meeting, from which Rudy calls Trump.
8. January 4: Post-Pence Willard Hotel meeting.
9. January 5: “Fuck his lawyer.”
10. January 5: Call with Trump before “All hell is going to break loose.” J6C

Others don’t involve Epshteyn (or are important for the way Bannon conveys recent contact with Trump).

One mention of Bannon in the immunity filing is his Halloween prediction that Trump would claim victory. According to Dan Friedman, who first reported on the recording, Bannon’s October 31 prediction that Trump would declare victory was a recording of a meeting he had with Guo Wengwui’s activists.

The pre-election audio comes from a meeting between Bannon and a half dozen supporters of Guo Wengui, an exiled Chinese mogul for whom Bannon has worked. Bannon helped Guo launch a series of pro-Trump Chinese-language news websites that have promoted an array of far-right misinformation, including a video streaming site called GTV. The meeting was intended to help GTV plan its election night coverage.

Though he did not attend, Guo arranged the confab, which was held in the Washington, DC, townhouse where Bannon tapes War Room, according to a person who was present.

Jack Smith chose to use this instance of Bannon’s prediction, which ties to the foreign funding of Bannon’s disinformation, rather than (as Bannon himself noted to Friedman in a comment for that story) any of the other times Bannon made the same prediction, including on his podcast.

[A] Bannon spokesperson argued that Bannon’s statements on the recording are not news. “Nothing on the recording wasn’t already said on War Room or on multiple other shows like The Circus on Showtime,” the spokesperson said. “Bannon gave that lecture multiple times from August to November to counter Mar[c] Elias’ Election Integrity Project.” Elias is a prominent Democratic election lawyer. The spokesperson also said that the January 6 committee “should have the courage to have Mr. Bannon come and testify publicly about these events.”

So one thing Smith does by including Bannon as a co-conspirator is to tie Guo’s funding of Bannon’s disinformation to January 6. Remember: SDNY treated Bannon as a co-conspirator at Guo’s trial (though did not treat it as a foreign influence operation).

But the more important instance where you’d need to treat Bannon as a co-conspirator to introduce his words is Bannon’s later prediction: “All hell is going to break loose.” The immunity filing directly ties the comment to an 11-minute phone call Bannon had with Trump, from 8:57 to 9:08 AM, earlier that morning.

The next morning, on January 5, the defendant spoke on the phone with [Bannon]. Less than two hours later, on his podcast, said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”376

That is, the immunity filing treats this prediction like three other things it includes on Bannon: his prediction Trump would declare victory, Bannon’s notice to Epshteyn that Trump would soon put Rudy in charge of post-election interference, and his January 2 instruction — given immediately after speaking to Trump — that Trump wanted John Eastman to brief Pence. All four use Bannon like a mirror to get to things (the filing implies) Trump told Bannon.

The immunity filing suggests that Bannon spoke to Trump, agreed that “all hell is going to break loose tomorrow,” and then shared that detail on his podcast.

Notably, though, like Roman’s elicitation of a riot, that’s not necessary to the charges in the existing indictment. Bannon’s involvement in the fake electors plot is — or is at least useful. Bannon’s conveyance of instructions from Trump, particularly on January 2, is a way to show Trump’s intent regarding the effort to pressure Pence.

But you don’t need violence to prove these charges. Indeed, both the indictment and the immunity filing stop well short of implicating Trump with inciting violence. They describe Trump and his co-conspirators attempting to “exploit” the violence already in progress to cause further delay, but they don’t accuse Trump of anticipating or encouraging that violence.

Steve Bannon and Mike Roman absolutely help prove the conspiracy counts currently charged against Trump; Roman’s communications, in particular, provide key details of how he recruited fake electors.

Where they become far more important as co-conspirators, though, both with the TCF unrest and the violence at the Capitol, is in arguing that Trump conspired to stoke violence, something that Jack Smith has not (yet, at least not publicly) charged, something that would also implicate the missing Proud Boys.

These inclusions and exclusions all suggest that Jack Smith could have approached the superseding indictment differently, but did not.

Again, this is speculation, but I suspect that Jack Smith reserved a number of things for use after the election.

If we get that far.