What Jack Smith Didn’t Say about the January 6 Investigation

As part of Kyle Cheney and Josh Gerstein’s summary of the Jack Smith report, they argued that “Smith [came] to Garland’s defense” regarding his conduct of the January 6 investigation before Smith was appointed, pointing to Smith’s review of certain legal fights, to include the Executive Privilege fight.

Smith comes to Garland’s defense

A common sentiment on the left is that Garland was too deferential to Trump after Joe Biden took office and failed to unleash the full might of the department on the former president for nearly two years. The delay, critics say, made it much more difficult for Smith — once he was appointed in November 2022 — to bring Trump to trial before the 2024 election.

But Smith’s report emphasized that the Justice Department was aggressively investigating leads related to Trump long before the special counsel’s tenure began. Litigation tactics by Trump and his allies, Smith argued, were the key factors that slowed the process to a crawl.

For example, Twitter, newly purchased by Elon Musk, delayed Smith’s effort to access Trump’s account data for weeks despite a court order that ultimately resulted in the company being held in contempt and fined $350,000.

It took Smith more than a year to obtain text messages between Rep. Scott Perry (R-Pa.) and Trump DOJ official Jeffrey Clark. And the department spent months fighting to access communications of John Eastman, a lawyer who helped devise Trump’s last-ditch efforts to remain in power.

The most protracted battles of all stemmed from Trump’s “broad invocation of executive privilege to try to prevent witnesses from providing evidence,” Smith wrote. It took months of secretive legal proceedings to secure testimony from Trump White House aides such as Mark Meadows, Dan Scavino and Pat Cipollone. Former Vice President Mike Pence also resisted testifying until a court ordered him to reveal some — but not all — details about his interactions with Trump. Smith noted that judges broadly rejected Trump’s privilege claims, with one holding that he was engaged in an “obvious” effort to delay the investigation.

That led to Garland whingers like Ryan Goodman to imagine he knows better than Cheney and Gerstein, who between them have been among the most aggressive in liberating and reporting on documentation pertaining to the investigation. Goodman pointed to a misleading passage in Smith’s report which dates the Executive Privilege fight to August 2022, which describes when “executive privilege litigation” occurred (my emphasis).

Most of the executive privilege litigation in this case took place in five sealed proceedings between August 2022 and March 2023 concerning the testimony of fourteen witnesses in total. See Media Access ECF No. 32 (notice attaching district court orders and memorandum opinions). In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s, including by issuing subpoenas for testimony before the grand jury.

Goodman complained that it took “nineteen months” after January 6 before DOJ “‘began to seek’ former USG officials testimony.”

“In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s.” Nineteen months after Jan. 6: DOJ “began to seek” former USG officials testimony.

For added context: August 2022 is after the House Select Committee had already completed its summer 2022 public hearings.

Other data show the slow start.

George Conway, piggybacking off Goodman’s error, claimed this started “*after* the House Jan. 6 Committee had held eight of its nine televised evidentiary hearings.”

Only, Goodman was misreading the Smith report and in the process demonstrating that he had not read the underlying documents.

The first opinion listed in Jack Smith’s appendix on the Executive Privilege fight, 22-gj-25, describes that the fight actually started in June, when prosecutors got approval to disclose grand jury materials and used it to write subpoenas, almost certainly sent to Marc Short and Greg Jacob. That passage makes clear that prosecutors got the White House Counsel to waive Executive Privilege (thereby adhering to the DOJ contacts policy), but Trump stalled for several weeks, and then got the witnesses’ attorneys to start asserting privilege.

So, contrary to Conway’s mistaken claim, this started no later than the first televised January 6 Committee hearing on June 9 (and probably, because prosecutors had already gotten approval to share grand jury information, even before that one).

Smith’s representation of these legal fights pertained to “litigation” — the actual legal filings — and only to the extent they continued into his own work. That’s evident from his appendix, which excludes some known legal fights. Indeed, Cheney and Gerstein actually themselves overstate what Smith includes in his report: While he included the relevant docket in his appendix, Smith barely addressed the 16-month fight (starting in August 2022) over the content in Scott Perry’s phone in the text of his report (his Speech and Debate discussion mostly pertained to Mike Pence’s fight in early 2023). And Cheney and Gerstein suggest that Smith addressed the fight over content from John Eastman, which Smith did not (nor did he include those filings in the report). That fight began sometime before May 26, 2022, by which point Beryl Howell had had hearings on a filter protocol for email accounts including Eastman and others (Cheney wrote more about that fight here).

To be clear: as far as is known, Goodman is only off by two months in his claim that DOJ did not try to speak to White House personnel until August 2022; it was June. But both he and Conway are wrong that the J6C hearings preceded this fight. You can certainly believe, as Goodman obviously does, that the best way to conduct the investigation was to start with White House personnel who would and did loop in Trump (and, as it happened, hasten the time he declared his candidacy), rather than starting with Co-Conspirator #1 and then #2, as DOJ proceeded. Goodman had no way of knowing when he started this complaint that SCOTUS would throw out much of the testimony from White House officials anyway, but he does now. If we’re engaging in counterfactuals, we can say with some confidence that approach would have been stymied even more effectively by SCOTUS.

Goodman also complained today that DOJ pursued the money trail and suspected communications with the Proud Boys and Oath Keepers immediately, both of which theories had solid evidence (likely arising from the mishandled Brandon Straka prosecution and the Owen Shroyer arrest) behind them. The money trail ended up being a dry hole; the comms angle ended up being inconclusive. But that’s the kind of thing Goodman and his ilk were demanding in real time — multiple prongs to pursue the case. Follow the money!

Instead, prosecutors’ most productive 2021 efforts appears to be getting an SDNY judge to allow DOJ to use the existing Special Master review for phones seized from Rudy Giuliani in April 2021 to prioritize obtaining the January 6 content. DOJ started with Co-Conspirator #1, and did so in a way that Trump had limited ability to obstruct. And from there, they seized one after another phone: John Eastman and Jeffrey Clark in June 2022, Scott Perry in August 2022, Boris Epshteyn and Mike Roman in September 2022, all of which would have had delays (not reflected in Jack Smith’s report because none of those have been unsealed) because of attorney-client, Speech and Debate, or technical exploitation issues, yet all of which would have been necessary given their reliance on encrypted apps. (This post argues that Smith likely didn’t get the content of Roman and Epshteyn’s phones until after he first indicted Trump.) You were never going to avoid getting the co-conspirator phones, because this coup was planned on encrypted apps and all of them fought disclosure. It appears that DOJ opportunistically seized the first of those on the first day there was a confirmed DAG to approve doing so. It is also clear that that wasn’t enough.

But if you’re going to make these complaints about what you read in Jack Smith’s report, you should note what else Smith said. The January 6 Committee work “comprised a small part of the Office’s investigative record,” but before Smith could use anything from J6C, prosecutors first had to “develop[] or verif[y those facts] through independent interviews and other investigative steps.”

The Office’s investigation included consideration of the report issued on December 22, 2022, by the U.S. House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Capitol, as well as certain materials received from the Committee. Those materials comprised a small part of the Office’s investigative record, and any facts on which the Office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps. During the prosecution of the Election Case, Mr. Trump alleged that the Select Committee and Special Counsel’s Office were one and the same and sought additional discovery about the Select Committee’s work. The district court rejected the claim. See ECF No. 263 at 47 (concluding that Mr. Trump has “not supplied an adequate basis to consider the January 6 Select Committee part of the prosecution team”). Regardless, the Office provided or otherwise made available to Mr. Trump in discovery all materials received from the Select Committee. See ECF No. 263 at 47 (“the Government states that it has already produced all the records it received from the Committee”).

We know from the immunity appendix that Jack Smith had productive follow-up interviews with Bill Barr, Ronna McDaniel, and Jason Miller, among others, to say nothing about more extensive cooperation with Eric Herschmann and Mike Pence’s privilege-waived interview(s).

But validating what J6C did could not start until J6C released transcripts in December 2022, after a 3-7 month delay.

The timeline below reflects the delay, from April to December 2022, in getting J6C transcripts (in part for good reasons; once DOJ got them, they were going to have to share with all January 6 defendants). The important delay, however, came in June, when prosecutors realized they had pending events, most obviously the Proud Boys trial, which for discovery reasons and to validate their most important cooperating witness, Jeremy Bertino, they needed to delay (and did, from August to December 2022) until those transcripts were released. At that point they believed those transcripts would come out in early September, which is what drove their trial schedule; but they didn’t come out until December.

This post and this post describes the predictable damage that that delay did to the Proud Boys case (which guilty verdict would be necessary to implicate Trump in insurrection). This post describes how prosecutors were able to use J6C transcripts that were done by June 2022 to identify the single most direct ask from Trump via Rudy Giuliani to overturn votes (one which likely relied on having exploited Rudy’s phone). Again, that clarification was delayed by 6 months. If you want to complain about delays — and there definitely appears to have been a delay from February to May 2022 when (per that famous WaPo story) FBI resisted that prong of the investigation — then you need to complain as well about the J6C delay of the same length.

But it’s not clear any of this would matter. SCOTUS had the ability, which they exercised, to stall all of this; had Trump lost, SCOTUS still would have gotten at least a second chance to weigh in before trial. And unless Smith superseded to add insurrection charges, Trump still would not be disqualified from running for office.

Barring Mitch McConnell or John Roberts doing the right thing, this battle was lost politically. And no amount of second guessing strategic decisions that ended up being auspicious given SCOTUS’ subsequent rewriting of the Constitution can change that. Indeed, the second guessing distracts from effective efforts to minimize Trump’s damage going forward.

Update: I’ve changed the language regarding prosecutors’ search of comms showing ties between the militias and Trump. I’ve added the Oath Keepers, whose ties to Stone were a subject of the investigation even before Garland was confirmed. I’ve deemed the comms angle inconclusive rather than a dry hole. Roger Stone was ultimately implicated in the Proud Boys’ obstruction of the vote certification via his actions at a January 3 rally in Florida (though not via the Proud Boy leaders). In December 2023, prosecutors took steps to more concretely lay out how Trump had sparked Proud Boy organizing.

Timeline

January 4, 2021: DC authorities seize Enrique Tarrio’s phone

January 25, 2021: Stop the Steal VIP Brandon Straka arrested; DOJ IG opens probe into Jeff Clark and others

February 17, 2021: First allegedly cooperative interview with Straka (Straka ultimately provided details on Ali Alexander’s Stop the Steal list, among other things, but the FBI almost certainly mishandled the entire Straka case, including by not probing his role at TCF Center in Michigan)

March 5, 2021: Second allegedly cooperative interview with Straka

March 11, 2021: Merrick Garland sworn in; in first meeting with investigators he encourages them to follow suspected money laundering behind payment for the rally

March 17, 2021: DOJ makes first tie between Oath Keepers investigation and Roger Stone

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ obtains warrant targeting Rudy Giuliani’s cell phones in Ukraine investigation

April 28, 2021: DOJ seizes multiple devices from Rudy, including the phone he used leading up to January 6

June 23, 2021: First Oath Keeper who interacted with Stone enters into cooperation agreement

August 19, 2021: Alex Jones sidekick Owen Shroyer, who participated in Friends of Stone list and served as a communication hub between Proud Boys and others, arrested

September 2021: DOJ subpoenas records from Sidney Powell grift

September 3, 2021: SDNY makes an ultimately successful bid to review all content on Rudy’s devices for privilege (making such content immediately available if and when DOJ obtains January 6 warrant targeting Rudy)

Fall 2021: Thomas Windom appointed to form fake elector team

October 28, 2021: Merrick Garland tells Sheldon Whitehouse DOJ is following the money of January 6

November 2, 2021: Special Master Barbara Jones releases first tranche of materials (through date of seizure in April 2021) from Rudy’s phones, including device containing many of Rudy’s January 6 communications

November 22, 2021: Trump appointee Carl Nichols asks James Pearce whether 18 USC 1512(c)(2) might be applied to someone like Trump (he would go on to issue an outlier opinion rejecting the application)

December 2021: NARA and Mark Meadows begin process of completing his record of PRA-covered communications

December 10, 2021: Judge Dabney Friedrich (a Trump appointee) upholds application of 18 USC 1512(c)(2) to January 6

January 5, 2022: Merrick Garland reiterates that DOJ is investigating the financial side of January 6

Mid-January 2022: DOJ finally obtains contents of Tarrio’s phone

January 19, 2022: Jones releases remaining content from Rudy’s phones; SCOTUS declines to review DC Circuit rejection of Trump’s Executive Privilege claims with respect to January 6 subpoenas

January 25, 2022: Lisa Monaco confirms DOJ is investigating fake electors plot

January 31, 2022: DOJ opens grand jury investigation

February 18, 2022: In civil cases, Judge Amit Mehta rules it plausible that Trump and militias conspired to obstruct vote certification, as well that he aided and abetted assaults and also that it is plausible Trump used incitement not protected by the First Amendment

March 2, 2022: Oath Keeper in charge of Stone security on January 6, Joshua James, enters into cooperation agreement

March 7, 2022: Carl Nichols first requires implication of documentary evidence for 18 USC 1512(c)(2)

March 28, 2022: Judge David Carter issues crime-fraud ruling covering John Eastman’s communications with and on behalf of Trump

April 13, 2022: After two month stall, FBI finally approves their side of investigation

Probable April 2022 (based on how long it took for filter protocols elsewhere): Warrant for Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer emails

April 2022: DOJ requests transcripts from J6C

May 2022: DOJ subpoenas all NARA records provided to J6C

May 26, 2022: Subpoenas for fake electors plot including Rudy, John Eastman, Boris Epshteyn, Bernie Kerik, and Jenna Ellis, among others; filter protocol for email accounts of Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer

June 6, 2022: DOJ charges Proud Boy leaders with seditious conspiracy

June 9, 2022: In Proud Boys hearing, prosecutors say they expect to get J6C transcripts in September

June 15, 2022: Subpoena to Marc Short and Greg Jacob; letter to J6C renewing request for transcripts

June 16, 2022: DOJ agrees to delay Proud Boys trial from August 9 to December 12 because of the transcripts

June 21, 2022: Second set of fake electors subpoenas, adding Mike Roman and others, warrants for NV GOP officials and GA official

June 22, 2022: DOJ searches Jeffrey Clark’s home and seizes his phone

June 23, 2022: DOJ completes exploitation (but not scoping) of Shroyer’s phone;

June 24, 2022: Ali Alexander grand jury appearance; Warrant approved for Clark Gmail account

June 27, 2022: Then Chief Judge Beryl Howell permits prosecutors to obtain emails between Scott Perry and Clark and Eastman

June 28, 2022: DOJ seizes John Eastman’s phone

July 22, 2022: Marc Short appears before grand jury

August 9, 2022: DOJ seizes Scott Perry’s phone

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 2022: Mark Meadows provides previously withheld PRA covered materials to NARA

Early September, 2022: Pre-election legal process includes seizure of Boris Epshteyn and Mike Roman’s phones, subpoenas to key aides including Dan Scavino, Bernie Kerik, Stephen Miller, Mark Meadows, subpoenas pertaining to Trump’s PAC spending

September 27, 2022: Howell approves sharing of memoir

October 13, 2022: Marc Short and Greg Jacob make second, privilege-waived grand jury appearance

November 18, 2022: Merrick Garland appoints Jack Smith

December 2, 2022: Pats Cipollone and Philbin make second, privilege-waived grand jury appearance

~December 7, 2022: J6C provides at least some transcripts to DOJ (which are turned over to Proud Boys the following day)

December 21, 2022: J6C publicly releases transcripts promised in September

December 2022: Rudy Giuliani subpoena asks for information on his payment

January 17, 2023: Warrant for Trump’s Xitter account

February 9, 2023: Mike Pence subpoenaed; Xitter complies with Trump warrant

February 23, 2023: DC Circuit hears Scott Perry’s challenge to order providing access to his phone content

March 9, 2023: Judge Kollar-Kotelly orders Peter Navarro to turn over PRA-covered contents from Proton Mail account

March 28, 2023: Chief Judge Jeb Boasberg rules Mike Pence must testify (though protects some areas on Speech and Debate grounds)

April 4, 2023: DC Circuit declines to stay Beryl Howell ruling ordering testimony from Mark Meadows and others

April 7, 2023: DC Circuit upholds 1512(c)(2)

April 27, 2023: Mike Pence testifies before grand jury

August 1, 2023: Jack Smith indicts Trump

December 1, 2023: DC Circuit issues Blassingame and Tanya Chutkan rules against Trump on immunity

December 11, 2023: Jack Smith asks SCOTUS to expedite appeal

December 13, 2023: SCOTUS grants cert to Fischer’s 1512(c)(2) appeal

December 19, 2023: Boasberg orders Perry to turn over non-Speech and Debate privileged comms

December 2023 to August 7, 2024: SCOTUS delays January 6 case

January 9, 2024: DC Circuit argument

February 6, 2024: DC Circuit Immunity decision

May 2024: Original trial date

June 28, 2024: SCOTUS narrows application of 18 USC 1512(c)(2)

July 1, 2024: SCOTUS immunity decision

August 7, 2024: Chutkan receives mandate from immunity decision

August 27, 2024: Jack Smith supersedes Trump to accommodate SCOTUS immunity and obstruction rulings

January 7, 2025: Jack Smith report

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Calvinball

Yesterday at 7:39PM, the 11th Circuit denied Walt Nauta and Carlos De Oliveira’s bid to enjoin the Jack Smith report. But the unsigned order did not tell Aileen Cannon to fuck off. Instead, it invited DOJ to appeal her decision.

ORDER:

Appellees’ “Emergency Motion for Injunction with Relief Requested by January 10, 2025” is DENIED.

To the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.

DAVID J. SMITH Clerk of the United States Court of Appeals for the Eleventh Circuit

ENTERED FOR THE COURT – BY DIRECTION

DOJ did appeal; their appeal hit Judge Cannon’s docket around 11:04PM.

NOTICE OF APPEAL by USA as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira Re: 682 Order. Filing fee $ 605.00. USA/FPD Filer – No Filing Fee Required.

Just after midnight, DOJ filed a notice of appeal to the existing 11th Circuit docket.

Earlier this evening, January 9, this Court denied defendants’ emergency motion to enjoin the Attorney General from publicly releasing any portion of the Final Report of the Special Counsel. The Court further indicated that, “[t]o the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.”

We write to notify the Court that the United States has tonight filed a notice of appeal from the district court’s order of January 7, 2025. See Dkt 686. As the Court knows, that order temporarily enjoined the Department of Justice, the Attorney General, the Special Counsel, and others from releasing or sharing the Special Counsel’s Final Report “outside the Department of Justice” pending this Court’s ruling on defendants’ emergency motion. Dkt. 682 at 2. The district court specified that this prohibition would “remain[] in effect until three days after” this Court’s resolution of defendants’ motion in this Court. Id

[snip]

Given the unusual exigencies of this case, as illustrated by the emergency motions practice in both the district court and this Court, the United States respectfully renews its request that this Court promptly vacate the district court’s temporary injunction.1

1 The government’s notice of appeal, filed tonight, squarely invokes this Court’s appellate jurisdiction. As soon as the new appeal is docketed in this Court, the United States intends to move to have that appeal consolidated with this one. To the extent there is any doubt concerning the Court’s authority to review the temporary injunction, furthermore, we respectfully request that the Court construe our appeal as a petition for a writ of mandamus. See Suarez-Valdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (holding that appeal can be construed as a petition for mandamus if the Court harbors doubts as to its appellate jurisdiction).

They renewed their request to tell Cannon to fuck off, and asked them to treat this as a writ of mandamus in the meantime.

Because the 11th Circuit order is unsigned, it’s really difficult to understand what whatever judges involved intend by this muddle — besides giving Nauta and De Oliveira a shot at appealing to SCOTUS on the very narrowed question before the 11th Circuit: whether they can prohibit Merrick Garland from doing anything given it will cause them no harm.

By inviting DOJ to appeal, they have squarely invoked the 11th Circuit’s appellate jurisdiction, meaning Cannon should be barred from meddling any more (not like that ever stopped her).

And if SCOTUS does nothing before 7:39PM on Sunday, then Garland can do what he says he wants: release the January 6 report and share the documents report with the Chairs and Ranking members of the Judiciary Committees.

But if DOJ files their appeal, then the 11th Circuit can weigh in on Cannon’s far more expansive demands.

There are at least hints here that DOJ is going to take steps to share the reports one way or another.

Until then, we’re waiting to learn how this game of Calvinball will turn out.

Update: Here’s DOJ’s motion to reverse Aileen Cannon.

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Will Aileen Cannon Succeed at Suppressing Hunter Biden Dick Pic Sniffing?

I had a dream last night that the documents side of the Jack Smith report, which is the subject of a heated legal battle right now, revealed that Smith developed evidence that Trump had given documents he took to the Saudis in the context of several major business deals. To be clear: It was a dream! I don’t think that’s the most likely content of the report.

But the report is sure to be pretty damning. I’m virtually certain the report shows that aspiring FBI Director Kash Patel lied to help Trump retain classified documents. Senior White House counselor designee Stan Woodward played a role in giving Patel and Walt Nauta legal protection to, themselves, run legal interference for Trump (though there’s absolutely no reason to believe the report will say Woodward’s actions were unethical). Questions remain about whether Trump succeeded in retaining and disposing of still-unidentified documents. And the report may explain the sensitivities of the documents and the mitigation the Intelligence Community had to do as a result.

That said, my dream convinced me — against my better judgment — to explain what I think DOJ is trying to do with this legal fight, because it conveys the outer limits of potential scandal that could be buried in that document. Just the stuff implicating Kash alone is damning, but it could be far worse.

I want to talk about the government response — in the person of the SDFL US Attorney’s Office and DOJ’s Appellate team, because Jack Smith has already withdrawn from the 11th Circuit — to Walt Nauta and Carlos De Oliveira’s bid to enjoin the release of the stolen documents half of the Jack Smith report.


Procedurally, here is what happened in the 11th Circuit (I may or may not go back to fill in Aileen Cannon’s side, but as you can see, she tried to bigfoot into an ongoing matter before the 11th Circuit, which may have pissed off the 11th).

January 7, 9:02 AM, 11th Circuit: Emergency motion to bar release. “Garland is certain to release the report and it will impugn on our right to a free trial and the report cannot be released lawfully, because Jack Smith was unconstitutionally appointed and Trump is President-elect.”

January 7, 1:13PM, 11th Circuit: Notice. DOJ shall submit a response by 10AM on January 8.

January 7, 1:23PM, 11th Circuit: USDC Order. Aileen Cannon’s order enjoining the release of everything docketed at 11th Circuit.

January 7, 1:28PM, 11th Circuit: Notice of appearance. DOJ Appellate lawyer Mark Freeman files an appearance.

January 7, 3:18PM, 11th Circuit: Supplemental. “Here’s the order that already got filed in this docket. We’re, uh, filing it so it has a procedural purpose on the docket.”

January 8, 9:49AM, 11th Circuit: Response. “The part of the report pertaining to Nauta and De Oliveira won’t be released so they have no standing.”

January 8, 11:28AM, 11th Circuit: Notice of intention to reply. “We’re going to reply by 10AM on Thursday.”

January 8, 12:22PM, 11th Circuit: Notice. “No, you’ve got until 5PM today to respond.”

January 8, 5:06PM, 11th Circuit: Reply. “What if it leaks?”

January 8, 10:52PM, 11th Circuit: Trump Amicus. “Block both volumes!!”


The government response effectively argues the following: There are two volumes to the report, Volume One, which covers Trump’s attempted coup, and Volume Two, which covers the documents case. Walt Nauta and Carlos De Oliveira are not mentioned in Volume One, and so they have no interest in it and so no legal standing to try to block it.

Because of the ongoing case against Nauta and De Oliveira (the Response explains), Merrick Garland has decided that no part of Volume Two will be released. It will, instead, only be made available for in camera review to the House and Senate Judiciary Chairs and Ranking Members at their request, with their agreement that no information from it will be publicly released.

Nauta and De Oliveira have no authority to affect the release of Volume One. Not only did Judge Cannon’s original order deeming the Jack Smith appointment unconstitutional limit itself to the case before her (that is, not even the one in DC), but she cannot have the authority to deem all Special Counsels unlawful.

Please specify that this is the last word, unless the 11th Circuit en banc or the Supreme Court tries to get involved.

Narrow the legal dispute

I don’t pretend any of this is satisfying to people who want both reports. But here’s the legal logic to it.

First, because of the the posture of this appeal, the entire documents side of the case is in uncertain status. When Judge Cannon ruled Jack Smith’s appointment was unconstitutional, she said that everything Smith had done since his appointment had to be unwound. So unless the report only covered stuff before that point — that is, through the document seizure, but during which Cannon’s injunction on the investigation largely prevented any interviews of people like Nauta — then it remains in limbo awaiting the 11th Circuit decision on Cannon’s ruling. So it’s not just that there’s a pending case against Nauta and De Oliveira, it’s also that the entire legal status of the work done after November 18, 2022, which makes up the bulk of the obstruction investigation.

So whatever Garland (or Brad Weinsheimer, the top nonpartisan lawyer at DOJ, whom I’m certain is involved) thinks about the merit of releasing the report, for the purposes of this dispute, he is trying to eliminate any standing anyone has to interfere with the release of the January 6 volume. (Side note: it was short-sighted for Jack Smith to release these as volumes to the same report, rather than separate free-standing reports.) Nothing Garland has authorized with the volume pertaining to Nauta and DeOliveira can affect their hypothetical right to a fair trial they’ll never face, because nothing from the report will become public in such a way that potential jurors would see it. That is, sacrifice immediate publication of the documents volume in an attempt to release the January 6 one.

Create a dead man’s switch

Garland has agreed with Jack Smith that Volume Two should not be released so long as the Nauta and De Oliveira cases are pending, but that suggests once they no longer are pending, the information could be released.

Attorney General Garland is committed to ensuring the integrity of the Department’s criminal prosecutions. Considering the risk of prejudice to defendants Nauta’s and De Oliveira’s criminal case, the Attorney General has agreed with the Special Counsel’s recommendation that Volume Two of the Final Report should not be publicly released while those cases remain pending. See 28 C.F.R. § 600.9(c). There is therefore no risk of prejudice to defendants and no basis for an injunction against the Attorney General.

[snip]

The Attorney General’s determination not to authorize the public release of Volume Two fully addresses the harms that defendants seek to avoid in their emergency motion. As noted, consistent with 28 C.F.R. 600.9(a), the Attorney General intends to make Volume Two of the Final Report available for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees, pursuant to restrictions to protect confidentiality. Even then, however, consistent with legal requirements, the Department will redact grand jury information protected by Rule 6(e) as well as information sealed by court order from the version made available in camera for congressional review. Defendants have no colorable claim to prejudice from these carefully circumscribed in camera disclosures.

The filing leaves unsaid what happens when the cases against them go away, which will happen either because the 11th Circuit affirms Cannon’s ruling that Jack Smith was unlawfully appointed, Trump’s DOJ withdraws from the appeal, or Trump simply pardons his co-conspirators. Everyone knows they will go away, but once they do, then in theory Volume Two could come out.

Everyone has made sure the report could come out in current form; because of the redactions they’ve done, no grand jury material would be implicated, nor any information sealed by Cannon.

This creates an effective dead man’s switch tied to the Nauta and De Oliveira prosecution. Once that case goes away, Jamie Raskin and Dick Durbin would be free to talk about it. And, it’s possible, there’s a standing order at DOJ that it will be released publicly.

Of course, either the landing team at DOJ or Pam Bondi, once she’s confirmed, can and undoubtedly would override any such order. Assuming they can find every report at DOJ or they disseminate an order forbidding its release sufficiently broadly to cover all potential distributions within DOJ, they can and likely will succeed in preventing the release.

I’m not saying we’ll get the report, which is one reason I hesitated to even post this.

At that point, though, whoever orders the report’s suppression would, in effect, be suppressing damning information about — at least — Kash Patel. And Trump. And (with my clear caveat that there’s no reason to believe Woodward did anything unethical), Woodward, who one of these days should expect nomination as a judge.

And, if Jamie Raskin and Dick Durbin get to review it, they would know that.

In other words, if, by taking any legal dispute off the table, Garland succeeds in letting Raskin and Durbin read the report, it’ll create a headache.

Not to mention, the existence of the report will likely form a key part of Jim Jordan and Kash Patel’s efforts to retaliate against Jay Bratt and Jack Smith. And it may create ethical obligations to recuse from such matters for everyone but Bondi.

Again, I’m not saying this will work. I’m saying it may cause headaches.

Implicate the Hunter Biden report

That brings us to the second thing that Garland/Weinsheimer have done to muddle these legal issues.

As I’ve said repeatedly, David Weiss was appointed under the same legal authority as Jack Smith. If Jack Smith’s appointment was unconstitutional, then Weiss’ was, too, especially with respect to Hunter Biden’s Los Angeles prosecution and even more with respect to Alexander Smirnov’s prosecution. Yet several DC judges have rejected that claim.

And we’re about to get a report from Weiss, too, one that remains unmentioned, at least specifically, in this legal dispute.

After Joe pardoned Hunter, Weiss got Smirnov to agree to a baffling above-guidelines sentence plea deal, with the caveat that he be sentenced almost immediately; yesterday, Judge Otis Wright sentenced him to six years. I expect that Weiss has already completed his report, with the expectation it’ll be released along with Trump ones on Friday. (I’ve been guessing this would all go down on January 10 for some time; looks like a pretty prescient guess.)

So when DOJ repeatedly mentions the impossibility that Cannon’s order could enjoin all Special Counsels nationwide, they are implicitly including David Weiss, even if only Jack Smith’s DC report gets mentioned.

Defendants also reiterate their claim that the Special Counsel was unlawfully appointed. The United States has thoroughly rebutted that contention in its merits briefs in this appeal. But in any event, the argument is irrelevant to the only action here at issue—the handling of the Final Report by the Attorney General. The district court, in dismissing the indictments against defendants, did not purport to enjoin the operations of the Special Counsel nationwide, nor could it have properly done so in this criminal case. Accordingly, as required by Department of Justice regulations, the Special Counsel duly prepared and transmitted his confidential Final Report to the Attorney General yesterday (as permitted by the district court’s recent order). 28 C.F.R. § 600.8(c) (“Closing documentation.”). What defendants now ask this Court to enjoin is not any action by the Special Counsel, but the Attorney General’s authority to decide whether to make such a report public. See id. § 600.9(c); 28 U.S.C. § 509. As noted above and discussed in more detail below, the Attorney General determined that he will not make a public release of Volume Two while defendants’ cases remain pending. That should be the end of the matter.

[snip]

Although the district court in this case concluded that the Special Counsel was not properly appointed and ordered that the indictment be dismissed as a remedy, the district court did not purport to enjoin the ongoing operations of the Special Counsel’s Office nationwide. This is a criminal case, and the district court limited its remedy to dismissal of the indictment. See Dkt. 672 at 93. The court did not purport to issue—and it could not properly have issued—a nationwide injunction barring the Special Counsel from discharging the functions of his office in Washington, D.C. or elsewhere.

Indeed, while defendants argue that the order appointing the Special Counsel became “void” upon issuance of the district court’s judgment in this case, Mot. 14, the district court was clear that its order was “confined to this proceeding,” see Dkt. 672 at 93. —i.e., to this criminal prosecution. The district court never barred the Special Counsel from performing other duties, including the preparation of the Final Report. Had it purported to do so, the district court would have had to grapple with the fact that the D.C. Circuit—whose law governs Department headquarters and the Special Counsel’s offices where the Final Report was prepared—has rejected the same Appointments Clause theory that the district court accepted. See, e.g., In re Grand Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019). The district court with responsibility for the Election Case did so as well.

On paper, at least, Nauta and De Oliveira have no legal dispute, and Trump’s amicus demanding that the DC volume be suppressed, too, has even less.

But who knows? Trump’s dealing with a set of judges and justices who could care less about legal standing if it means protecting him.

And that’s why the Hunter Biden report matters.

If the 11th Circuit issues an order enjoining all currently pending Special Counsel reports, it would have the effect of enjoining the Hunter Biden one, as well. And then, when Pam Bondi comes in and tries to suppress the Trump one, any release of the Hunter Biden one (which I expect to assign a specific time and cost value of the pardon to Hunter), will amount to an ethical problem, a double standard serving to protect Trump.

Again, I’m not saying that any of this will work. I’m saying that if and when it doesn’t, it has the ability create a big ethical and potentially legal headache for Trump’s wildly conflicted DOJ just at the start of their tenure.

Update (h/t Lemon Slayer): Garland wrote the Chairs and Ranking Members about the completion of the report and the delay caused by Cannon. This language sure sounds like Garland has intended his order will release the report when the investigation into Nauta and De Oliveira is killed.

Consistent with local court rules and Department policy, and to avoid any risk of prejudice to defendants Waltine Nauta and Carlos De Oliveira, whose criminal cases remain pending, I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing. Therefore, when permitted to do so by the court, I intend to make available to you for in can1era review Volume Two of the Report upon your request and agreement not to release any information from Volume Two publicly. I have determined that once those criminal proceedings have concluded, releasing Volume Two of the Report to you and to the public would also be in the public interest, consistent with law and Department policy.

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Lefty Pundits Absolve Their Own Failures on Holding Trump Accountable for His Coup

Let me start this post with a quiz.

Who are the two Trump associates newly treated as co-conspirators in the October 2024 immunity brief?

Read more

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Leo Wise Buries Bill Barr with Six Year Sentencing Recommendation

To be absolutely clear, David Weiss’s lead prosecutor Leo Wise did not bury Bill Barr with a recommendation that Bill Barr be sentenced to six years in prison for framing Joe Biden.

No.

Leo Wise argued that Alexander Smirmov should be sentenced to six years in prison for (in addition to cheating on his taxes over three years) providing a false claim that Mykola Zlochevsky had bribed Joe Biden via the side channel that Bill Barr set up in the wake of Trump’s search for bribery allegations against Joe Biden.

In 2020, Smirnov and his willingness to make false claims about Donald Trump’s opponent were magically discovered by a team Barr ordered Pittsburgh US Attorney Scott Brady to convene. After that team magically discovered Smirnov, the FBI magically failed basic vetting, such that they took travel records showing no evidence Smirnov took trips he claimed to have taken and, from those, declared his travel records corroborated his claims.

Remember, vetting was, if you believe in magic, the entire point of the Brady side channel!

That would have been the end of things. Except then, one after another Republican kept magically rediscovering Smirnov’s false claim, each time using it as an excuse to ratchet up further investigation into Hunter and Joe Biden.

That happened in October 2020 after Donald Trump yelled at Bill Barr. That happened in May 2023. That happened in June 2023. And that happened when Leo Wise decided to chase the allegation in July 2023.

And in his sentencing memo, Leo Wise has argued that Smirnov should be punished with six years in prison because of Scott Brady and Bill Barr and Jamie Comer and Jim Jordan and Donald Trump and Leo Wise’s lust to pursue a claim that Joe Biden took a bribe.

Before I get into the story Wise tells to get there, check out how his sentencing recommendation compares to Charles McGonigal’s, who in addition to lying on FBI disclosure forms in order to hide that he had a side foreign partner paying him $225,000, like Smirnov, caused a false investigation to be filed against someone (the rival of McGonigal’s Albanian partner).

The left column is sentencing guidelines mumbo jumbo, but what you need to know is that prosecutors were arguing sentences for the same base level crime, 18 USC 1519 (altering a document) with a baseline of 14 points. Both were slapped with enhancements because their false claims led the government to take investigative steps (more on that below). Leo Wise argued that non-employee FBI informant Smirnov should get the same penalty for abusing his position of trust, 2 points, as a NY Field Office Special Agent in Charge (though that may be the only available enhancement). Then on top of the enhancements McGonigal got for hiding his side business from the FBI and investigating his partner’s rival, Wise argued Smirnov should get 2 points for how important the document is, and then first 3 and then another 2 points for framing a former Vice President during a Presidential election and also because his document was used again while Biden was President, including when Leo Wise decided to chase it.

One way you can tell this whole sentencing process — likely this whole plea deal — is a sham, is that Smirnov’s excellent attorneys didn’t do the analysis I just did (to say nothing of comparing Smirnov to Kevin Clinesmith, who altered an FBI email and whose victim was a former Trump campaign aide, yet got probation), showing that Leo Wise wants to punish Smirnov more aggressively than a guy who sold out the FBI and also caused a false investigation to be opened. The comparators Smirnov’s excellent attorneys invoked all involve people who got probation for conduct similar to Smirnov’s (but again, mysteriously not Clinesmith). Even if you assume Smirnov should go to prison for framing Joe Biden, though, it’s hard to see how his betrayal is worse than McGonigal’s.

Another way we can tell the whole sentencing process is a sham is that, as I speculated, the 4-6 year sentencing included in the deal was totally arbitrary, probably intended to serve some other purpose, maybe frame Joe Biden? Turns out even with all those enhancements, Leo Wise still only got to a 57 to 71 month range, but that didn’t stop him from asking for 72 months anyway. The range was, indeed, not based on guidelines, nor is it yet.

Which is where we finally get to the story Leo Wise told about all this, and ultimately to where he has hidden Bill Barr, the guy who ordered up the side channel that magically found a way to frame Joe Biden and then, in 2023, who made claims about the process with the result that the same Smirnov claim ended up framing Joe Biden a second time.

Leo Wise tells the story of how this all went down twice. The first time (in the section laying out Smirnov’s crime), he mostly stuck to what Wise put in the indictment, starting with the Brady side channel, to which Wise adds the letter to Jerry Nadler intended for public consumption, attributing the side channel to Jeffrey Rosen, not the guy mentioned in Trump’s perfect phone call who ordered Brady to open the side channel and to whom Brady personally reported on it.

In June 2020, the Handler reached out to the Defendant concerning the 2017 1023. Obstruction of Justice Indictment (Exhibit 2) ¶ 22. This was done at the request of the FBI’s Pittsburgh Field Office (hereafter “FBI Pittsburgh”). Id. In the first half of 2020, the United States Attorney’s Office for the Western District of Pennsylvania (hereafter “USAO WDPA”) had been tasked by the Deputy Attorney General of the United States to assist in the “receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.” Id.; see also February 18, 2020 Letter to The Honorable Jerrold Nadler (Exhibit 8). As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. Id. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”. Id.

From there, Wise vaguely describes how, in July 2023, the FBI asked the people who were already investigating Hunter Biden to look into the Smirnov allegation, mentioning as well that, having magically gotten a copy of the 1023, Charles Grassley released it on a date Leo Wise chooses not to include: July 20, 2023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. Obstruction of Justice Indictment (Exhibit 2) ¶ 41. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1. Id.

Also in July 2023, a member of the United States Senate posted the 2020 1023 on his official website, making the Defendant’s false allegations against Public Official 1 public. https://www.grassley.senate.gov/news/news-releases/grassley-obtains-andreleases-fbi-record-alleging-vp-biden-foreign-bribery-scheme (Exhibit 5).

On August 11, 2023, the Attorney General appointed David C. Weiss, the United States Attorney for the District of Delaware, as Special Counsel. Obstruction of Justice Indictment (Exhibit 2) ¶ at 42. The Special Counsel was authorized to conduct the investigation and prosecution of Businessperson 1, as well as “any matters that arose from that investigation, may arise from the Special Counsel’s investigation, or that are within the scope of 28 C.F.R. § 600.4(a).” Id

On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. Id. at ¶ 43. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it. Id.

No need to tell Judge Otis Wright about how sometime before July 10 — and probably as early as June 19, when Leo Wise came in and David Weiss started to renege on a signed plea deal — David Weiss was already investigating the allegation. Blame it on Chuck.

In this telling, Wise buries Barr’s personal role in setting up the side channel in January 2020, as well as Barr’s personal role in inflaming things in June 2023 — about the time that Weiss started reneging on a plea deal — by telling Margot Cleveland that he had told David Weiss to investigate this in 2020.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

[snip]

But that’s just not true, according to the former attorney general. Instead, the confidential human source’s claims detailed in the FD-1023 were sent to the Delaware U.S. attorney’s office for further investigation, according to Barr.

Wise then tells the story again later, when he tries to lard on how much work Smirnov caused because he had the bad luck of having his willingness to make shit up about Joe Biden discovered by people who were hoping to make shit up about Joe Biden.

Wise doesn’t explain how Brady’s folks would even come across Smirnov’s allegation if all they were doing was vetting open source tips. It’s Smirnov’s fault Brady magically started searching on Burisma and Hunter Biden and discovered a guy who started offering to make shit up about Joe Biden a month earlier.

In 2020, the FBI, through the Pittsburgh Field Office, and the U.S. Department of Justice, through the U.S. Attorney’s Office for the Western District of Pennsylvania, assigned investigators and prosecutors to pursue the false allegations that the Defendant made that were memorialized in the 2020 1023. For example, the document titled “Open Items for Completion by PG” shows various investigative steps that FBI Pittsburgh and FBI Seattle, where the Defendant’s Handler was located, took in an attempt to assess the credibility of the allegations the Defendant first reported in 2020 that were memorialized in the 2020 1023. Exhibit 6

In 2023, the FBI assigned a second team of investigators, through the FBI’s Wilmington RA and the U.S. Department of Justice, through the U.S. Attorney’s Office for the District of Delaware and later the Special Counsel’s Office, to investigate the Defendant’s allegations. This second group of FBI agents and prosecutors took investigative steps that caused them to conclude that the Defendant was lying and that he should be prosecuted himself for these lies.

In any event, significant Justice Department resources were expended determining that the Defendant’s false allegations were lies

Then it blames Smirnov — and not the GOPers seeking to frame Joe Biden — for the efforts FBI had to take in an effort to tamp down GOP efforts to find a way to frame Joe Biden.

In addition, the 1023 caused the substantial expenditure of government resources by the U.S. Congress and the FBI and Department of Justice in the Congressional oversight process. The following is a summary by FBI Director Wray of the actions taken by the Congress and the FBI and Justice Department specifically related to the 2020 1023

Most remarkably, given the way Leo Wise obscures that, after Barr publicly declared that David Weiss had been ordered to investigate the Smirnov allegation, a claim backed by multiple public records, David Weiss had publicly confirmed he was looking at the Smirnov allegations before someone magically gave Chuck Grassley a copy to leak, to argue for the extra two point enhancement for a super duper victim, the President of the United States!, Wise complains that Smirnov retold his lie when Wise (and Weiss) came calling, or maybe it’s that Comer and Jordan were trying to frame Joe Biden while he was President, or maybe it was all an election interference stunt.

The upward departure contemplated in Application Note 5 differs from Section 3A1.2 in two important ways. First, it uses the present tense “if the official victim is an exceptionally high-level official …” (emphasis added). When the Defendant was interviewed in September 2023 and repeated his false accusations against Joseph R. Biden, which is described in the indictment and is relevant conduct, Joseph R. Biden was the President of the United States. So that requirement is met. Second, the last phrase in the application note refers to “potential disruption of the governmental function,” which is an additional requirement that must be met to justify an additional upward departure. Congressional oversight is a “governmental function.” At the time the Defendant repeated his false accusations in September 2023, the Congress was actively involved in examining the Defendant’s false claims in the 2020 1023. The 2020 1023 was released publicly in July and, as described above, the Congress and the Executive Branch had taken numerous steps to address its claims. The Defendant’s choice to repeat his false claims when he was interviewed by the FBI in September 2023 had the potential to further disrupt the oversight process, which is a governmental function.

Further, at the time the Defendant was interviewed President Biden was a candidate for re-election. The Supreme Court has long recognized a state’s compelling interest in regulating elections, i.e. in securing the right to vote freely and effectively. Burson v. Freeman, 504 U.S. 191 (1992); see also Mills v. Alabama, 384 U.S. 214 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970). The Defendant’s false statements had the potential to disrupt the conduct of federal elections by spreading misinformation about the presumptive nominee of one of the two major American political parties in the 2024 elections.

This all gets to be a bit much.

The truth of the matter is Donald Trump ordered his people to frame Joe Biden, Bill Barr set up a way to facilitate that process, they magically found a way to do that, and after Lesley Wolf tried to save David Weiss from all this in 2020, Leo Wise came along and — goaded on by an entire Congress trying to frame Joe Biden — decided he knew better and would pursue the same allegations that didn’t make sense three years earlier.

And here we are and all of this is the fault of Alexander Smirnov, and — according to Leo Wise — he should face the kind of obstruction sentence never before seen because the entire Republican party facilitated his effort to frame Joe Biden.

Alexander Smirnov was willing to frame Joe Biden and he got caught. But he got caught because the entire GOP renewed the effort to frame Joe Biden, over and over and over again.

Yet for that, only Alexander Smirnov should face a six year sentence, Leo Wise says.

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The Two Smear Attacks against Jeff Bezos and His Partner

Jeff Bezos doesn’t tweet much.

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

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

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

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

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

 

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Must be nice not to have to rely on corrections.

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

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

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

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Human Individuality

Index to posts in this series

The question for this series is what does it mean to be an individual in contemporary US society. The first posts lay some groundwork for this question. In this post, I give a tentative answer to part of the question: what do we mean by individuality.

I began to address this question in the conclusion to the series on Michael Tomasello’s book The Evolution of Agency, The idea is that all human characteristics, including consciousness, reasoning capacity, and emotions, evolved over millions of years. The main point of that post was to deal with the difference between free will and agency.

This is Tomasello’s description of agency:

…[W]e may say that agentive beings are distinguished from non-agentive beings … by a special type of behavioral organization. That behavioral organization is feedback control organization in which the individual directs its behavior toward goals — many or most of which are biologically evolved — controlling or even self-regulating the process through informed decision-making and behavioral self-monitoring. Species biology is supplemented by individual psychology.

I suggest that we find individuality in the way each of us selects goals, directs our behavior toward those goals, and the way each of us controls and self-regulates ourselves through informed decision-making and self-monitoring.

It may seem that I am just pushing back the problem to another level: what are the goals and how do we form them, what are the control and self-regulating functions, what are informed decision-making and self-monitoring and how do they work. I don’t think so. I think we can’t handle the broad question of individuality, but we can find approximate descriptions for Tomasello’s operations. And, I think the part about setting goals and the part about informed decision-making carry us most of the way to individuality.

What Peirce Got Wrong

I like the ideas of C.S. Peirce, including this 1877 article. He tells us two things that are often true.

1. Thinking is hard and we don’t like to do it. We only do it when faced with doubt, and even then only when other techniques of dealing with doubt fail.

2. When doubt reaches the point that we can’t ignore it, we look for some other opinion. Not necessarily a true opinion, but just something that causes the doubt to subside.

I suspect that this is true of a lot of people (like MAGAts and me when someone attacks my heroes). But I think a lot of us enjoy thinking, talking about stuff, learning new stuff, meeting people not like us, traveling, and we happily do it all through our lives. I think it starts with curiosity, that force that drives children to ask questions about everything. For such people, truth matters.

Probably most of us are a combination of these two poles depending on the subject, but once you start with curiosity, it tends to undercut other certainties we hold, which in the long run might mean a bias towards true answers. I might even come to question my heroes.

A Metaphor

My brother Michael did a number  of single cell studies as part of his research into the transmission of pain signals to the brain. He said a neuron fires when the number of charged ions in the cell hits the magic number. When that happens, the cell fires, sending a signal down the axon to the next neuron. The first cell then returns to its resting state, ready for the next burst of charged ions. See also this.

I think one way we set goals for our actions is sort of like that. We get a stimulus outside what we anticipate, and we shrug it off, If that keeps happening, we hit a magic number and we decide to look more closely. Nothing changes until the magic level is reached. We just coast along.

Here’s an example. You go for a hike in a national forest. You’re looking around, but mostly at the ground to avoid tripping. You notice a bush with berries. Fine. Later you see a similar bush with more berries. And again. Then again, and this time you look closely. What are they? Are they edible? Am I hungry? A whole series of questions suddenly arises based on that stimulus.

Here’s another example, this time fairly close to my recollection of my own experience. I was raised Catholic, and starting in third grade, attended Catholic schools. I read a bunch of books about the lives of the Saints, including one I found recently: Ten Saints For Boys. I knew the stories, read about relics, read kid versions of the Bible stories and the Gospels, and it all seemed fine.

By high school, some of the stories started to feel a touch unreal. They didn’t correspond with the things in my life, and the histories didn’t sound like anything I knew about. One in particular was the doctrine of the Assumption of the Body Of The Blessed Virgin Mary into Heaven. That was very difficult to believe, but I tried.

Then I found out that the doctrine of papal infallibility was not established until 1870, suspiciously close to the loss of the Papal States in connection with the reunification of Italy that same year. That was a tipping point. Over the next few years  I modified my understanding of Catholic teachings  using a much broader range of sources, many if not most of which weren’t Catholic at all.

Now that’s a simplified version of what happened. I was doing a lot of related reading in those days, including existentialisn, math and physics, even Zen Buddhism, including Eugen Herrigel’s Zen In The Art Of Archery which I recommend very highly; and mysticism, including Thomas Merton’s Mystics And Zen Masters. I’m sure all that worked together to lead me to examine my thinking.

Selection Of Influences

We don’t get to choose our initial influences, parents, their friends and family, the people we live next to, teachers in K-12, the people and leaders of our Churches. Those choices are made for us. Today many of us don’t select much of what we read on social media because algorithms do the picking. We are at the mercy of  the Billionaire Media, and Google or some other profit-driven search engine, which generally sucks. (Side note: Musk attacks Wikipedia; one of the few useful sources of vetted information, donate if you can. I use it a lot so I donate regularly.)

But we can select what we read if we try. We can look for those who can teach us things we care about. How we pick what to read and who we can trust to teach us, and how we understand what we read and are taught, these are crucial factors in our individuality.

Summary

I think individuality is found in our control of our goal-setting and self-monitoring. I think we learn from other people, and that selection of those other people is crucial to our individuality. I think some things are better than others. Those choices are driven by curiosity. It gives me great satisfaction and pleasure to read and understand other people’s thinking. The world and the people in it are endlessly interesting.

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The Complications of Elon Musk

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

It also puts a trusted insider inside.

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

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

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

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

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

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

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

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

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

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Cotton Swabs and Grievance Myths: Do Not Invite Republicans to Express Support for Kash Patel’s Witch Hunts

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

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

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

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

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

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

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

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

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

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

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

We don’t live in that world.

Trying to budge Republicans from their reassurances would backfire.

Here’s why.

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

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

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

KRISTEN WELKER:

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

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

You won’t ever concede —

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

But you’re going to be the president.

PRESIDENT-ELECT DONALD TRUMP:

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

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

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

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

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

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

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

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

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

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

None.

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

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

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

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

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

Gone!

Poof!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A damn good question for a confirmation hearing.

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

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

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

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

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


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

RADDATZ: Would Donald Trump go after his political opponents?

VANCE: No —

RADDATZ: He suggested that in the past.

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

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

(CROSSTALK)

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

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

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

Kamala Harris is explicitly —

RADDATZ: Senator Vance, I —

(CROSSTALK)

VANCE: — censorship of folks who disagree with her.

RADDATZ: I want to go back to Donald Trump.

(CROSSTALK)

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

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

He often went after them in public, too.

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

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

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

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

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

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

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

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Barry Loudermilk Provides Proof of Kash Patel’s Incompetence Wrapped Up inside His Liz Cheney Referral

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

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

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

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

Loudermilk’s tribute to Kash Patel’s leadership

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[Discussion off the record.]

Q sure. Go ahead.

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

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

[snip]

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

A don’t recall him ever saying that.

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

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

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

How Barry Loudermilk covers up his own coverup

Which brings us to Loudermilk’s own coverup.

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

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

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

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

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

But Jack Smith released an unredacted fragment of that transcript.

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

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

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

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

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

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

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

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

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

Loudermilk’s sketchy evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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