Four Data Points on the January 6 Insurrection

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The NYT and WaPo both have stories beginning to explain the failures to protect the Capitol (ProPublica had a really good one days ago). The core issue, thus far, concerns DOD’s delays before sending in the National Guard — something that they happened to incorporate into a timeline not long after the attack, before the Capitol Police or City of DC had put their own together (the timeline has some gaps).

I can think of two charitable explanations for the lapses. First, in the wake of criticism over the deployment of military resources and tear gas against peaceful protestors to protect Donald Trump in June, those who had been criticized were reluctant to repeat such a display of force to protect Congress (and Mike Pence). In addition, in both DOJ and FBI under the Trump Administration, job security and career advancement depended on reinforcing the President’s false claims that his political supporters had been unfairly spied on, which undoubtedly created a predictable reluctance to treat those political supporters as the urgent national security threat they are and have always been.

Those are just the most charitable explanations I can think of, though. Both are barely distinguishable from a deliberate attempt to punish the President’s opponents — including Muriel Bowser and Nancy Pelosi — for their past criticism of Trump’s militarization of the police and an overt politicization of law enforcement. Or, even worse, a plan to exploit these past events to create the opportunity for a coup to succeed.

We won’t know which of these possible explanations it is (likely, there are a range of explanations), and won’t know for many months.

That said, I want to look at a few data points that may provide useful background.

Trump plans to pardon those in the bunker

First, as I noted here, according to Bloomberg, Trump has talked about pardoning the four men who’ve been in the bunker with Trump plotting recent events, along with Rudy Giuliani, who is also likely to be pardoned.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

I like to think I’ve got a pretty good sense of potential legal exposure Trump’s flunkies have, yet I know of nothing (aside, perhaps, from McEntee’s gambling problems) that these men have clear criminal liability in. And yet Trump seems to believe these men — including the guy with close ties to far right Congressmen, the white nationalist, the guy who remade several agencies to ensure that only loyalists remained in key positions, and the guy who tweets out Trump’s barely-coded dogwhistles — need a pardon.

That may suggest that they engaged in sufficient affirmative plotting even before Wednesday’s events.

Mind you, if these men had a role in coordinating all this, a pardon might backfire, as it would free them up to testify about any role Trump had in planning what happened on Wednesday.

Trump rewards Devin Nunes for helping him to avoid accountability

Several key questions going forward will focus on whether incompetence or worse led top officials at DOD to limit the mandate for the National Guard on January 6 and, as both DC and the Capitol Police desperately called for reinforcements, stalled before sending them.

A key player in that question is Kash Patel, who served as a gatekeeper at HPSCI to ensure that Republicans got a distorted view of the Russian intelligence implicating Trump, then moved to the White House to ensure that Trump got his Ukraine intelligence via Patel rather than people who knew anything about the topic, and then got moved to DOD to oversee a takeover of the Pentagon by people fiercely loyal to Trump.

And a key player in coordinating Kash’s activities was his original boss, Devin Nunes. On Monday, Trump gave Nunes the Medal of Freedom, basically the equivalent of a pardon to someone who likely believes his actions have all been protected by speech and debate. The entire citation for the award is an expression of the steps by which Trump, with Nunes’ help, undermined legitimate investigations into himself. In particular, Trump cited how Nunes’ efforts had hollowed out the FBI of people who might investigate anyone loyal to Trump.

Devin Nunes’ courageous actions helped thwart a plot to take down a sitting United States president. Devin’s efforts led to the firing, demotion, or resignation of over a dozen FBI and DOJ employees. He also forced the disclosure of documents that proved that a corrupt senior FBI official pursued a vindictive persecution of General Michael Flynn — even after rank and file FBI agents found no evidence of wrongdoing.

Congressman Nunes pursued the Russia Hoax at great personal risk and never stopped standing up for the truth. He had the fortitude to take on the media, the FBI, the Intelligence Community, the Democrat Party, foreign spies, and the full power of the Deep State. Devin paid a price for his courage. The media smeared him and liberal activists opened a frivolous and unjustified ethics investigation, dragging his name through the mud for eight long months. Two dozen members of his family received threatening phone calls – including his 98 year old grandmother.

Whatever else this debasement of the nation’s highest award for civilians might have done, it signaled to Nunes’ team — including but not limited to Patel — Trump’s appreciation for their work, and rewarded the guy he credits with politicizing the FBI.

That politicization is, as I noted above, one of the more charitable explanations for the FBI’s lack of preparation on Wednesday.

Interestingly, Nunes is not one of the members of Congress who challenged Biden’s votes after law enforcement restored order.

Corrected: Nunes did object to both AZ and PA.

Trump takes steps to designate Antifa as a Foreign Terrorist Organization

The day before the insurrection, Trump signed an Executive Order excluding immigrants if they have any tie to Antifa. Effectively, it put Antifa on the same kind of exclusionary footing as Communists or ISIS terrorists. Had Trump signed the EO before he was on his way out the door, it would have initiated a process likely to end with Antifa listed as a Foreign Terrorist Organization, giving the Intelligence Community additional intelligence tools to track members of the organization, even in the United States (the kind of tools, not coincidentally, that some experts say the FBI needs against white supremacist terrorists).

The EO will have next to no effect. Joe Biden will rescind it among the other trash he needs to clean up in the early days of his Administration.

But I find it curious that Trump effectively named a domestic movement a terrorist organization just days before multiple Trump associates attempted to blame Antifa for the riot at the Capitol.

That effort actually started before the order was signed. Back in December, Enrique Tarrio suggested that the Proud Boys (a group Trump had called to “Stand by” in September) might wear all black — a costume for Antifa — as they protested.

“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist…,” Henry “Enrique” Tarrio, the group’s president, wrote in a late-December post on Parler, a social media platform that has become popular with right-wing activists and conservatives. “We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.”

The day after the riot, Matt Gaetz relied on a since-deleted Washington Times post to claim that the riot was a false flag launched by Antifa.

In a speech during the process of certifying President-elect Joe Biden, Gaetz claimed there was “some pretty compelling evidence from a facial recognition company” that some Capitol rioters were actually “members of the violent terrorist group antifa.” (Antifa is not a single defined group, does not have an official membership, and has not been designated a terrorist organization, although President Donald Trump has described it as one.)

Gaetz attributed this claim to a short Washington Times article published yesterday. That article, in turn, cited a “retired military officer.” The officer asserted that a company called XRVision “used its software to do facial recognition of protesters and matched two Philadelphia antifa members to two men inside the Senate.” The Times said it had been given a copy of the photo match, but it didn’t publish the picture.

There is no evidence to support the Times’ article, however. An XRVision spokesperson linked The Verge to a blog post by CTO Yaacov Apelbaum, denying its claims and calling the story “outright false, misleading, and defamatory.” (Speech delivered during congressional debate, such as Gaetz’s, is protected from defamation claims.) The Times article was apparently deleted a few hours after Apelbaum’s post.

Rudy Giuliani also attempted to blame Antifa.

And Captain Emily Rainey, who resigned today as DOD investigates the PsyOp officer for her role in the insurgency, also blamed Antifa for the violence.

Her group — as well as most at Wednesday’s rally — were “peace-loving, law-abiding people who were doing nothing but demonstrating our First Amendment rights,” she said.

She even shared a video on Facebook insisting that the rioters were all Antifa, saying, “I don’t know any violent Patriots. I don’t know any Patriots who would smash the windows of a National jewel like the [Capitol].”

It is entirely predictable that Trump loyalists would blame Antifa for anything bad they do — Bill Barr did so as the formal policy of DOJ going back at least a year. But Trump seems to have prepared the ground for such predictable scapegoating by taking steps to declare Antifa a terrorist “organization” hours before a riot led by his supporters would storm the Capitol.

The White House makes DHS Secretary Chad Wolf’s appointment especially illegal

I’m most intrigued by a flip-flop that had the effect of making DHS Acting Secretary’s appointment even more illegal than it has already been at times in the last two years.

On January 3, the White House submitted Chad Wolf’s nomination, along with those of 29 other people, to be DHS Secretary. Then, on January 6, it withdrew the nomination.

Wolf himself was out of the country in Bahrain when the riot happened. But he did tweet out — before DOD mobilized the Guard — that DHS officials were supporting the counter-insurgency. And he issued both a tweet and then — the next day — a more formal statement condemning the violence.

It’s not entirely clear what happened between his renomination and the withdrawal, but Steve Vladeck (who tracks this stuff more closely than anyone), had a lot to say about the juggling, not least that the withdrawal of his resubmitted nomination made it very clear that Wolf is not now legally serving.

This could have had — and could have, going forward — a chilling effect on any orders Wolf issues to deploy law enforcement.

Thus far, we haven’t seen much about what DHS did and did not do in advance of the riot — though its maligned intelligence unit did not issue a bulletin warning of the danger.

The Federal Bureau of Investigation and an intelligence unit inside the Department of Homeland Security didn’t issue a threat assessment of the Jan. 6 pro-Trump protests that devolved into violence inside the Capitol, people briefed on the matter said.

In the weeks leading up to the protests, extremists posted about their plans to “storm” the Capitol on social media.

The joint department bulletin is a routine report before notable events that the agencies usually send to federal, state and local law-enforcement and homeland security advisers. The reports help plan for events that could pose significant risks.

At the DHS unit, called Intelligence and Analysis, management didn’t view the demonstrations as posing a significant threat, some of the people said.

Last year, Ken Cuccinelli forced whistleblower Brian Murphy to change language in a threat analysis to downplay white supremacist violence and instead blame Antifa and related groups.

In May 2020, Mr. Glawe retired, and Mr. Murphy assumed the role of Acting Under Secretary. In May 2020 and June 2020, Mr. Murphy had several meetings with Mr. Cuccinelli regarding the status of the HTA. Mr. Cuccinelli stated that Mr. Murphy needed to specifically modify the section on White Supremacy in a manner that made the threat appear less severe, as well as include information on the prominence of violent “left-wing” groups. Mr. Murphy declined to make the requested modifications, and informed Mr. Cuccinelli that it would constitute censorship of analysis and the improper administration of an intelligence program.

Wolf had been complicit in that past politicization. But something happened this week to lead the Trump White House to ensure that his orders can be legally challenged.

Update: Jake Gibson just reported that Wolf is stepping down.

These are just data points. We’ll learn far more about Trump’s involvement as the FBI obtains warrants for the communications who have ties to both groups like the Proud Boys and Trump associates like Roger Stone and Steve Bannon. But these are a few data points worth keeping an eye on.

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Once Again Trump’s Self-Victimhood Distracts from His Negligence

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It will be the subject of extensive discussion going forward how plans for an insurrection made in plain sight on social media went from being viewed, by the FBI and DHS, as First Amendment protected speech to so dangerous that social media shut down key influencer accounts and Apple and Google kicked entire platforms out of their stores within days. But that’s what happened.

On Thursday, a various law enforcement agencies tried to explain why they had allowed the Capitol to be overrun by terrorists, they claimed not to have seen the signs many of us were seeing of plans for violence.

Federal and local officials said Thursday they did not have intelligence suggesting any violent mob was preparing to attack the Capitol, even as demonstrators were publicly saying on social media they were not planning a typical protest.

Despite weeks of preparations, “obviously, what happened no one anticipated,” Michael Sherwin, acting US Attorney for the District of Columbia, told reporters in a telephone press conference Thursday. “Things could have been done better.”

[snip]

Police were caught flat-footed the next day. DC Police Chief Robert Contee told reporters Thursday there was no intelligence that suggested there would be a breach of the US Capitol on January 6. Three DHS sources, who usually receive such reports, were unaware of a threat assessment being shared from the DHS intelligence office ahead of Wednesday’s siege.

But just over a day later, Apple announced that it was giving Parler 24 hours to come into compliance with its moderations guidelines; Google just removed Parler from its stores entirely. Twitter first removed various QAnon supporters, including Sidney Powell and Mike Flynn. Then, finally, after allowing him to Tweet twice after a short-term ban, Twitter announced it was removing Trump permanently and those social media platforms that hadn’t already done so removed Trump as well.

Trump spent the night trying to find workarounds, using the POTUS account, attempting to have one of his sons tweet out his content, and having his social media staffer tweet on his own account. Unless the Tweet included a presidential message, the content was removed.

In response, Trump, his supporters, and the usual commentariat have decried a purportedly authoritarian “censorship” of Donald Trump. Indeed, most of the discussion since then has focused on whether Twitter and other social media platforms acted appropriately.

That has, as has happened so many times in the last four years, distracted from Trump’s own refusal to act.

Here’s Twitter’s description of why it found that Trump had violated Twitter’s Glorification of Violence prohibition.

Overview

On January 8, 2021, President Donald J. Trump tweeted:

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

Shortly thereafter, the President tweeted:

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.

Assessment

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

  • President Trump’s statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate and is seen as him disavowing his previous claim made via two Tweets (1, 2) by his Deputy Chief of Staff, Dan Scavino, that there would be an “orderly transition” on January 20th.
  • The second Tweet may also serve as encouragement to those potentially considering violent acts that the Inauguration would be a “safe” target, as he will not be attending.
  • The use of the words “American Patriots” to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol.
  • The mention of his supporters having a “GIANT VOICE long into the future” and that “They will not be disrespected or treated unfairly in any way, shape or form!!!” is being interpreted as further indication that President Trump does not plan to facilitate an “orderly transition” and instead that he plans to continue to support, empower, and shield those who believe he won the election.
  • Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.

As such, our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so.

Effectively, Twitter is saying that these Tweets have been exploited by the terrorists supporting Trump as support for further violence. It specifically described plans, being made both on and off Twitter, for a follow-on attack no January 17 (apparently because Q is the 17th letter in the alphabet).

Twitter is not actually arguing that Trump intended to incite violence. Rather, they’re saying that his Tweets are being interpreted as encouragement of more violence that is already being actively planned, regardless of what Trump actually meant by it.

Now, maybe Trump didn’t intend that to be the effect, though Twitter makes a fair point that both the reference to a “GIANT VOICE” in the future — one that may depend on further terrorism — and the formal announcement that the inauguration could be targeted without endangering Trump himself might be seen as inviting more violence.

But if he didn’t mean to do so, the proper response of any marginally responsible adult would be to say, “Golly, I didn’t realize how my own words were being used in ways I didn’t intend. Let me take the next few weeks off to cool off, or better yet, let me find other ways to correct any misinterpretation that I supported violence.” The appropriate response for the Commander in Chief would be to say, “Wow, that was a totally unprecedented attack on our Capitol the other day, I’m deploying all the resources of the Federal government to ensure these planned follow-up attacks will not take place.”

Have you noticed that Trump hasn’t actually said he has ordered the government to prevent further violence?

That’s all the more alarming, given that US law enforcement agencies increasingly share intelligence with the social media platforms, which suggests that Twitter’s reference to “a number of factors” doesn’t rule out specific intelligence about follow-on plans that aren’t visible on social media.

Twitter said, tucked away there in a fifth bullet, that one of the reasons they (and presumably Facebook and Apple and Google and everyone else) acted is because there are specific plans for future terrorist attacks.

And instead of talking about the fact that the man who remains President is doing nothing to prevent those follow-on attacks, we’re talking about what a victim he is.

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Bunker: Trump’s Exposure in the Insurrection Makes PardonPalooza More Complicated

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There have been numerous accounts of Trump’s desperate days since he incited a coup attempt. Most, including this CNN version, describe how — on the advice of (among others) White House Counsel Pat Cipollone — Trump recorded and released a very heavily edited video from a script written for him in an attempt to stave off removal proceedings.

His daughter Ivanka Trump, White House counsel Pat Cipollone, chief of staff Mark Meadows and others told Trump there was a real chance he would be removed from office — whether by his own Cabinet or lawmakers — if he did not more forcefully denounce the actions of his supporters who attacked the US Capitol the day before.

Trump did not initially want to issue a video decrying the loyalists whose actions he largely supported — and whom he said he “loved” a day earlier — but he told aides to prepare a speech and then he would decide.

Once he read over the brief script they had prepared, Trump agreed to record it Thursday evening — a relief to the senior staff, though concerns lingered he could backtrack during his final days in office given his actual position has remained unchanged: that he lost the election unfairly.

This WaPo version describes him holing up with really unsavory characters, including white supremacist Stephen Miller and John McEntee, who previously had been forcibly removed from his position at the White House because of gambling problems.

Trump spent Wednesday afternoon and evening cocooned at the White House and listening only to a small coterie of loyal aides — including Meadows, Deputy Chief of Staff Dan Scavino, personnel director Johnny McEntee and policy adviser Stephen Miller. McEnany also spent time with the president. Jared Kushner, the president’s son-in-law and senior adviser, was described as disengaged.

CNN also reports that’s he’s still planning on pardonpalooza covering at least his kids

And a raft of pardons, including potentially for himself and his family, are expected in the coming days.

According to this Bloomberg piece, he’s considering pardoning his bunker mates, Meadows, Miller, and McEntee, along with Kimberly Guilfoyle, none of whom had any obvious legal exposure before the last several weeks.

The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations. Trump has previously claimed the power, though it’s a matter of legal dispute and has never before been attempted by a president.

A self-pardon could also prove a major political liability and hamstring another presidential bid, with opponents sure to suggest the self-pardon amounted to an admission that he thought he might be prosecuted for breaking the law.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said. Trump’s personal lawyer Rudy Giuliani has also discussed the issue of a pardon with the president.

Preemptive pardons are also under consideration for other members of the president’s family, as well as friends and allies. For instance, Trump has floated a preemptive pardon for Kimberly Guilfoyle, the former Fox News host who is dating his eldest son, Donald Trump Jr.

The president wants the preemptive pardons to shield recipients from prosecutions for any federal crimes committed before the pardons were issued.

It notes that White House Counsel Pat Cipollone is “vetting” the pardons, with some concern that they create more exposure for obstruction of justice.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone.

Except, CNN also reports that Pat Cipollone is considering resigning.

Trump’s role in (at a minimum) inciting an insurrection the other day may make his effort to pardon himself and his associates out of legal trouble more difficult.

Start with a self-pardon. Before the insurrection, Cipollone might have advised Trump he might as well try it. He literally has nothing to lose, since he’s unlikely to trust Pence with a pardon at this point, so even if the self-pardon doesn’t work, he would be no worse off. Except, as a number of people have suggested, a self-pardon makes it far more likely DOJ will test the concept and prosecute him (though I think he’s done enough to be charged anyway). And because Trump’s exposure now includes insurrection, the conservative majority on SCOTUS might find the self-pardon particularly offensive. In addition, because Clarence Thomas’ wife Ginni was cheering on the terrorists, DOJ might — fairly — ask Thomas to recuse.

Then there’s Rudy. He was always going to be pardoned, because he knows where the bodies are buried and Trump believes (mistakenly) that Rudy has served his interests loyally. Except, to a far greater extent than before November, a Rudy pardon frees him to testify about crimes that Trump committed for which Rudy does not have attorney-client privilege, such as coordinating with coup plotters. This is exacerbated by the byzantine legal structure behind the fraudulent Trump lawsuits, where there was never any clarity about who was representing Trump and who was not. Once upon a time, Trump might have been able to pardon Rudy without increasing his own legal exposure. That’s probably not true anymore.

Then there’s Cipollone himself, a formidable lawyer who wants to get the fuck out of dodge. Cipollone, briefly, got Trump to see reason in making that video. Then as soon as Trump got his Twitter account he sent more messages riling up his terrorists. That suggests Cipollone recognized that Trump had real exposure in the insurgency, and took measures to limit them. Then Trump ignored his advice. All while asking Cipollone to help him pardon his co-conspirators.

While Cipollone has limited Executive Privilege with Trump (one breached in case of crime), under Clinton precedent he doesn’t have attorney-client privilege with Trump. That makes it likely that no matter what happens, he’ll be sitting for lengthy sessions with prosecutors in months ahead, just as Don McGahn also did.

When this whole Transition process started, Trump had Cipollone and Bill Barr — the latter the best cover-up artist in recent US history — around to help him out of his legal troubles. Now, his post-election antics have drove both of them away.

Once upon a time, Trump might well have been able to pardon himself out of a good deal of the criminal exposure he already faced. That’s far less likely now.

Update: Just in the last hour, Ginni Thomas made her Facebook account unavailable.

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The Trump Effect: Attempted Coup Edition

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I have long talked about “The Trump Effect,” by which Trump, in pushing existing policies an order of magnitude further, makes those toxic policies visible to people who otherwise have not seen them.

Yesterday’s coup attempt was not the implementation of any existing policy. What happened yesterday was unprecedented in the history of this nation.

That said, it did make certain things visible.

The DOD refusal to honor a request from Mayor Muriel Bowser, made before the coup attempt started, to deploy the National Guard to DC to help makes it clear (as did Trump and Bill Barr’s deployment of DOD troops over the summer) that DC cannot be left anymore without its own defense. As many people have noted, this provides a clear reason, independent of the number of Senators or the existence of a largely-Black city without full franchise, that DC should become a state.

Similarly, the refusal of DC cops, including Capitol Police, to treat these terrorists as terrorists demonstrates why people have called to “defund” the police. It’s not denial that we need police. It’s a recognition that, right now, police forces are often filled with extremists who sympathize with people like the terrorists who stormed the Capitol. There needs to be a priority on cleansing police forces of such extremists, or they will become an armed force working against democracy again.

Finally (in what appears to be a surprise to a guy who wrote a book on the topic and who has been dismissing the threat of a coup for months), what we saw yesterday was what happens when a man who puts self-interest over the good of the country happens to wield the power of the unitary executive. While some people appointed by Donald Trump took the appropriate approach in responding to the coup attempt — citing their oath to the Constitution — others dawdled until Mike Pence took action. It will take some time until we understand their excuse for protecting a man rather than the Constitution. But decades of claims that all authority emanates from the President certainly made it more likely. Last night made it clear that such unchecked authority is incompatible with the Constitution.

We are not yet out of the woods. Trump, even while stating he will leave office, nevertheless has promised to sustain his insurgency. On top of everything else President-Elect Biden has to deal with, he now has to think of ways to coup-proof the US government.

Update: Mayor Bowser has called for Congress to push statehood through in the first 100 days of the Biden Administration.

 

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Curing the Donald Trump Spell: The Problem

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126 Republican members of the House of Representatives signed an amicus supporting a frivolous challenge to President Trump’s election losses in swing states.  Reportedly, 140 members will support Louie Gohmert’s even more frivolous challenge to the certification of President-Elect Biden’s win. Every single Republican member of the House voted against impeachment of President Trump for withholding funds they themselves had appropriated to go to Ukraine in hopes of obtaining Russian-promoted dirt to use against Joe Biden. And while just a few Senators have overtly backed these frivolous challenges to Biden’s win, just Mitt Romney voted to convict the President in his impeachment trial.

A majority of the Republican Party has, thus far at least, made it clear they would abrogate the Constitution to see Donald Trump remain in power, even if it means trading away their own institutional prerogatives and dignity.

It’s unclear how much this rejection of democracy stems from recent trends in GOP culture and how much arises simply from a desire or perceived need to back Trump, who openly applauds authoritarians. My guess is that Trump just gave Republican permission to openly defy norms they’ve been quietly chipping away at for some time.

Still, Trump has made it clear he intends to keep milking the grift delegitimizing his own loss.

Two people familiar with the matter say that in recent days, Trump has told advisers and close associates that he wants to keep fighting in court past Jan. 6 if members of Congress, as expected, end up certifying the electoral college results.

“The way he sees it is: Why should I ever let this go?… How would that benefit me?” said one of the sources, who’s spoken to Trump at length about the post-election activities to nullify his Democratic opponent’s decisive victory.

That may exert political pressure on Republican elected officials. It will surely foster [more] violence among Trump’s followers.

That leaves the United States with a twofold task if it will be successful at stepping back from the brink of authoritarianism it faced on November 3: first, in the middle of a pandemic and a time of escalating inequality, to prove that democracy can still provide tangible benefits to Americans. That will require that President Biden not only choose to pursue policies to address the malaise that made Trump possible, but that he’ll succeed in implementing such policies. With limited exceptions, that will first require convincing a sufficient number of Republicans to act to benefit the US rather than just the party, or at the very least, to understand benefit to the GOP to be something other than lockstep loyalty to Trump. It requires doing so at a time when much of the GOP believes (Trump’s underperformance compared to down ballot races notwithstanding) that they need Trump’s support to get reelected in 2022, one stated reason why some Republican Senators may join Josh Hawley’s cynical support for Trump’s challenge on Wednesday.

But the vote on Jan. 6 to certify Biden’s win is viewed within the GOP as a painful litmus test. Republicans either risk blowback or a primary challenge by approving Biden’s win amid Trump’s baseless claims of widespread fraud, or they can align themselves with Trump’s attempt to subvert the election results.

Trump has already shown little regard for those who are criticizing the efforts in the House and Senate to block Biden’s win. The president attacked Senate Majority Whip John Thune (R-S.D.) for the second time this week after Thune said Trump’s efforts to overturn Biden’s win will go down like a “shot dog” in the upper chamber.

The president urged Gov. Kristi Noem (R-S.D.) to run against Thune, though Noem has already said she will not run against Thune. Trump in a tweet called Thune a “RINO” on Friday — a Republican In Name Only.

In short, something will need to break — or at least chip away at — the spell of authoritarian sycophancy that Trump has over the GOP.

Some of this may come of its own accord. For example, if Democrats manage to win the Georgia run-offs, Trump may try to claim that Republicans lost only because he had no reason to boost turnout. Still, if the GOP does lose the Senate after Trump spent months denigrating elections in Georgia, ultimately Senators will put some blame on Trump.

Trump’s luster may fade of his own doing. After all, a key part of his mystique comes from a belief that he has had any more success as a businessman that any other rich heir would be with the same money. Trump Organization is badly underwater, even absent the legal troubles facing the company in New York State. The pandemic will continue to suppress business travel at least for another four months. The private bankers at Deutsche Bank who’ve kept Trump afloat in recent years resigned some weeks ago. While Trump, personally, is entertaining offers for some media venture, it’s not clear any of then will provide a way to bail out his family company.

And increasingly, Trump will be deplatformed. While a significant swath of political journalists will continue air his grievances (it’s more fun than covering the kind of substantive policy debates that will return to DC), starting in three weeks Twitter no longer has a commitment to label, rather than delete, his tweets that violate Twitter policy. Rupert Murdoch has (at least temporarily) lost patience with Trump. Trump appears to be banking on sustainably being more important to the MAGAt base than Fox News; he believes he can take his followers with him to OANN or a Newsmax channel. And he’ll succeed, at least at first, to a point. But deplatforming of other right wing icons has shown that a significant portion of followers won’t make the effort to move off mainstream platforms (say, from Twitter to Parler). Without the same ability to juice the central conflicts of the day, Trump won’t have the same ability to remain one pole in a deliberately stoked polarization.

These are all things that may happen of their own accord. In a follow-up, I’ll look at ways that may bring Trump some accountability going forward.

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Russian Flight: The Timing of the Assange Charges

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The Department of Justice charged Julian Assange when they did to stave off an attempt to help Assange flee to Russia.

That’s one important takeaway from the date of the complaint, December 21, 2017. Days earlier, Ecuador had submitted diplomatic credentials for Assange to the British government, with the intent that he would move (or, according to the less reliable Guardian, be secretly exfiltrated) to Russia under protection of diplomatic status.

Ecuador last Dec. 19 approved a “special designation in favor of Mr. Julian Assange so that he can carry out functions at the Ecuadorean Embassy in Russia,” according to the letter written to opposition legislator Paola Vintimilla.

“Special designation” refers to the Ecuadorean president’s right to name political allies to a fixed number of diplomatic posts even if they are not career diplomats.

But Britain’s Foreign Office in a Dec. 21 note said it did not accept Assange as a diplomat and that it did not “consider that Mr. Assange enjoys any type of privileges and immunities under the Vienna Convention,” reads the letter, citing a British diplomatic note.

Ecuador abandoned its decision shortly after, according to the letter.

British authorities have said they will arrest Assange if he leaves the embassy, meaning he would have needed to be recognized as a diplomat in order to travel to Moscow.

The US finalized the complaint the same day the UK rejected the Ecuadorian request (though the accompanying 26-page affidavit suggests it been in the works for some time). The next day the US sent a formal extradition warrant to the UK. All this happened under dramatically increased (and visible) surveillance from Ecuador’s security contractor, UC Global; Assange boosters have tried to spin this attempt as a US kidnapping attempt, which is presumably what they would have called a failed exfiltration attempt.

The timing of two of the other sets of charges against Assange can also be fairly readily explained. Assange was formally indicted on March 6, 2018, the day before the 8-year statute of limitations on the CFAA charge would expire. The most recent superseding indictment, obtained on June 24, 2020, expanded the CFAA conspiracy charge through 2015, which seems to be another effort to expand the conspiracy before statutes toll. The next overt acts in WikiLeaks’ efforts to undermine the US came in March and April 2016. Unless Assange is pardoned and released (as I’ve noted, a pardon may not have the effect Assange boosters want it to), I think it highly likely DOJ will supersede again after inauguration to include, at a minimum, the Vault 7 publication, and probably some overt acts tied to the 2016 election interference. Depending on UK willingness to add to the total charges, the US might well add foreign agent charges they’ve alluded to.

Only the timing of the indictment adding the Espionage charges on May 23, 2019 can’t be readily explained (though it came in the wake of the Mueller Report and the larger Russian investigation which is, per the SSCI Report, what led to a better understanding of the degree to which Russia had “co-opted” WikiLeaks).

It is a testament to the power of WikiLeaks’ propaganda efforts that the entire focus on Julian Assange’s prosecution has been on false claims about why DOJ decided to prosecute him while Trump was President and not on the specific timing of the first charge against him, which ties it to Assange’s relationship with Russia.

Quite honestly, the US probably would have been far better off had Assange’s attempt to flee to Russia succeeded. That would have made clear even to the dead-enders that Assange had become little more than a Russian tool, and thereby diminished WikiLeaks’ allure and efficacy as a cover for leaks going forward. Instead, they’ve made of Assange a martyr about whom most journalism organizations in the world are enthusiastically repeating false propaganda.

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Merry Christmas!

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Happy holidays to one and all. However you celebrate the season, all the best from your friends and family here at Emptywheel. With all that has transpired in 2020, we are a little out of kilter. The long time friends here probably noticed that there was no yearly Christmas Eve memorial for our late and dear friend Mary, and all the others that have graced these pages but are now fond memories.

There was just too much this year to cover. And, personally, one of my oldest and dearest friends passed earlier this year, cancer no Covid, and her birthday would have been yesterday. It was hard to focus on much. But everyone here has suffered loss and tragedy, so cheers to all.

What are you eating? What are you drinking? Heck, what are you doing? It is such a weird year and time. By this time next year, I guarantee the more normal Emptywheel holiday festivities will be back and better than ever.

For this year though, from all of us, to all of you, thank you for being here. Thank you for contributing. Thank you for caring and thinking. It is a wonderful community, and that is because of each and every one of you.

No spiffy music video today, instead a little holiday joy in an awesome rescue of a deer in distress. Seemed appropriate. Cheers!

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Three Inconvenient Truths about a Hypothetical Trump Pardon for Julian Assange

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For the last several weeks, there have been floated hints that Donald Trump might pardon Julian Assange. Assange’s supporters — from frothy MAGAts to esteemed journalistic outlets — are fooling themselves about a possible Trump pardon on several counts.

Before I lay out what those are, let me reiterate, again, that I believe the Espionage Act charges against Assange pose a serious risk to journalism (though as written, the CFAA charge does not). I agree that the Chelsea Manning disclosures, which make up most but not all of the charges currently pending against Assange, included a large number of important revelations, many I relied on with gratitude. I’d be perfectly fine if Vanessa Baraitser ruled on January 4 that US prisons were too inhumane for Assange. And I agree that EDVA would be a horrible venue for Assange (though unlike other defendants, DOJ is not simply inventing that jurisdiction for the onerous precedents it offers out of thin air; it is the most obvious venue for Assange because of the Pentagon).

So this is neither disagreement on the risks an Assange prosecution poses, nor is it an endorsement of the prosecution of Assange as it exists. But a pardon would necessarily involve other crimes, in addition to the ones for which he has been charged, and those crimes go well beyond journalism. They may even involve crimes that Assange backers want no part in supporting.

A Donald Trump pardon of Julian Assange will be a very good way of making sure Assange comes to symbolize those other crimes, not earlier laudable releases, and it might not even end his imprisonment.

It may not work

If Trump gives Assange a pardon, it’s not actually clear it will end his legal jeopardy. The existing Espionage Act charges, particularly the ones for publishing names of coalition informants (which would include the UK) are actually more obviously illegal in the UK than the US. Two UK defendants have already pled guilty to a CFAA conspiracy that makes up part of the CFAA charge against Assange. And because the Vault 7 damage assessment presented at the Joshua Schulte trial explicitly included damage to foreign partners, that publication may expose Assange to Official Secrets Act charges in the UK as well. Plus, there are other aspects of the Vault 7 publication, including Assange’s efforts — with the help of a lawyer he shared with Oleg Deripaska — to coerce immunity from the US with them, that may pose legal jeopardy in the UK if he is pardoned in the US.

I’ve likened the Assange extradition to that of AQAP graphic designer Minh Quang Pham, and this may be another similarity. In that case, as soon as it became clear that the legal disposition that Theresa May was attempting in the UK might not work, SDNY promptly indicted Pham, ensuring Pham would remain in custody no matter what happened in the UK. I wouldn’t be surprised if the reverse happened in the eventuality of an Assange pardon in the US. That is, DOJ may already have sent the UK the evidence to support prosecution of Assange in the UK for some of the things the US would otherwise like to try him on. Indeed, that is consistent with the way the US charged Assange within a day of when Ecuador applied for diplomatic credentials for Assange; the UK has already proven to be in almost immediate coordination with the US on this.

The UK would surely rather the US do the job, but particularly because of the damage the Vault 7 release caused the Five Eyes, I don’t rule out the UK prosecuting Assange if the US could not.

A Trump pardon would have to pardon everything through current day

Assange’s boosters appear to think a pardon would cover just the existing Espionage charges pertaining to the Chelsea Manning leaks (plus the CFAA charge, which is no longer limited to the password crack attempt, though virtually all his boosters ignore the substance of that charge).

That, of course, wouldn’t work. Unless Assange were immediately whisked away to a country that doesn’t have an extradition treaty with the US, he could quickly be charged in a virtually identical indictment covering Vault 7 (and the US could charge it in any case as a way to pressure whatever country he was in). Only, on every charge, the claims now being made to defend Assange — about newsworthiness, about intentionality of revealing protected identities, about the push to leak entire databases — would be far weaker arguments with respect to Vault 7 than with respect to the Manning leaks. Just as one example, WikiLeaks left the identities of the people Joshua Schulte was angry at unredacted in the Vault 7 release, which would make it easier for prosecutors to show forethought and malice for revealing those identities than is the case in (especially) the Cable leaks. And that, again, ignores how Assange repeatedly used the files in an attempt to coerce immunity from the US.

Several close WikiLeaks associates have told me after the initial indictment they were glad it didn’t include Vault 7, because that’s a lot harder to defend against. The US might prefer it for that reason.

So an Assange pardon would have to include some language like, “all offenses against the United States prior to the pardon” — a pardon akin to what Gerald Ford gave Richard Nixon.

Surely, if Trump is going to pardon Assange anyway, he would be willing to do that. Trump’s gonna make Oprah look stingy in the next few weeks, after all. But legally, for a pardon for Julian Assange to stick, it would have to cover all crimes he committed against the US through the present day.

That of course shouldn’t bother Assange supporters — it accords him even broader protection than Mike Flynn got. But it does mean that the pardon would be assessed on the entirety of Assange’s actions, the record of which remains significantly classified and the public record with which virtually no Assange booster — up to and including extradition hearing “expert” witnesses — exhibit familiarity. In other words, they’re arguing blind, without knowing what they’re asking to pardon.

Because an Assange pardon would need to extend through the present it would be tainted by Trump’s own corruption, possibly including litigation

If a Trump pardon for Assange were written broadly enough to stick, it would almost certainly include a conspiracy involving Trump himself, possibly including Russia’s GRU, granting a pardon for Assange in exchange for the optimization of the Podesta files. The pardon itself would likely be a crime for Trump. And that raises the stakes on it.

When WikiLeaks supporters hear “Assange pardon,” they seem to immediately think, “Dana Rohrbacher.” That’s significantly because Assange’s lawyers, in a deliberate use of Assange’s extradition hearing to sow propaganda (of which this is by no means the only example), had Jen Robinson submit testimony describing how Rohrabacher attempted to broker a pardon for Assange in August 2017, a pardon that was contingent on claiming Russia was not behind the 2016 theft of DNC documents.  The testimony was meant to support Assange’s claim that his prosecution is political, a claim that involved misrepresenting the public record in many ways.

When Assange’s team brought this up in his extradition hearing, the lawyer for the US emphasized that Trump didn’t sanction this offer. That’s credible (and backed by contemporaneous reporting), mostly because at the time John Kelly was assiduously gate-keeping offers like this. So WikiLeaks’ focus on the Rohrabacher pardon dangle, while accurate (Robinson is far too ethical to misrepresent things), also falsely suggests that that pardon dangle was the only, or even the most important, pardon discussion between Trump and Assange. It wasn’t. And WikiLeaks knows that, because key WikiLeaks supporters — Randy Credico and Margaret Kunstler — were involved with the one still under criminal investigation.

It is a fact that the Mueller Report stated that they had referred ongoing investigations into whether Roger Stone took part in Russia’s hacking conspiracy to the DC US Attorney’s Office for further investigation. It is a fact that, when the court unsealed warrants against Stone in April, they revealed an ongoing investigation into Stone for the hacking, for conspiracy, and for serving as a foreign agent of Russia, one that Mueller had hidden from Stone. It is a fact that Randy Credico testified under oath he had put Stone in touch with Margaret Kunstler to discuss a pardon for Assange. Credico is evasive about when this discussion began, including whether the discussion started before the election. Texts submitted at trial show Stone and Credico discussed asylum and Credico’s tie to Kunstler on October 3, 2016, in a period when Stone had multiple phone calls with Credico as well as some presumed to be with Trump. Stone appears to have had lunch with Trump on October 8, the day after the Podesta emails dropped. Mike Flynn testified that after the Podesta files dropped, Trump’s closest advisors discussed reaching out to WikiLeaks. Shortly after that, Stone did reach out to WikiLeaks, and WikiLeaks reached out to Don Jr. WikiLeaks reached out to both after Trump won. And according to affidavits obtained against Stone, he and Kunstler started communicating over Signal starting on November 15, seven days after the election. As of October 1 of this year, significant swaths of Kunstler’s two interview reports with Mueller prosecutors remained sealed with redactions protecting an ongoing investigation.

If Stone is to be believed, he pursued this effort to get Assange a pardon at least through 2018. Two things are clear, however. Days after Stone told Assange he was working with the “highest level of Government” to resolve Assange’s issues, Trump directed Corey Lewandowski to direct Jeff Sessions to shut down the entire retroactive Russian investigation. Trump already took an overt act to respond to Stone’s entreaties to help Assange, one documented in Twitter DMs and notes Trump demanded Lewandowski take down. And after Mueller asked Trump about an Assange pardon, Don Jr’s best buddy Arthur Schwartz told Cassanda Fairbanks, “a pardon isn’t going to fucking happen” (she ultimately flew to London to tell Assange what Schwartz told her in person). Nevertheless, Stone’s buddy Tucker Carlson had Glenn Greenwald on pitching one to Trump — as a great way to get back at The [American] Deep State — in September.

To be clear: If Trump pardons Assange for all crimes against the United States, the pardon will still work for Assange (again, unless the UK decides to file charges against Assange instead). And I expect a great deal of Assange’s most loyal boosters won’t give a shit about what all was included in the pardon. Indeed, WikiLeaks’ most loyal fans believe it was a good thing for Assange to partner with the GRU in 2016 to undermine a democratic election.

But if Trump pardons Assange, these details are virtually guaranteed to come under close scrutiny in the months ahead, all the more so if he tries a self-pardon, because this would be one thing that even the 6 Republican majority on SCOTUS might find unreasonable, and it would be the quickest way to prove that not just Stone, but Trump himself, conspired to optimize the files stolen by Russia.

If all that were to happen after he was safe in Oz, Assange probably wouldn’t care, nor would I if I were in Assange’s position. But those backing an Assange pardon are — because of details that virtually none of them understand — cheering Trump to do one of the most corrupt things he would have done over the course of the last five years.

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Tom Bossert Gives Trump the Advice Trump Refused Four Years Ago

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Almost exactly four years ago, at a time when (seemingly unbeknownst to Trump’s incoming Homeland Security advisor Tom Bossert) Mike Flynn and his Deputy KT McFarland were secretly making asks of the Russian government, top Transition team officials discussed what to do about sanctions Obama imposed, in part, to punish Russia for interfering in the just finished election.

As part of that discussion, Bossert asked his predecessor Lisa Monaco how the Russians were responding to sanctions. At 4:01 PM on December 29, he reported back to Flynn, McFarland, Steve Bannon (at Bannon’s personal email), Keith Kellogg, and Reince Priebus:

[Monaco] confirms the Russiand [sic] have already responded with strong threats, promising to retaliate. [She] characterized the Russian response as bellicose. My thoughts, sans the Russia angle, on which I defer to Mike and KT: [redacted] : Cyber attacks by forcing [sic] governments or anyone else are unacceptable and must be taken seriously. The alleged Russian hack of US entities involved in the US political process is a problem. Of course we must separate their attempts to influence our election from the rash conclusion that they succeeded in altering the views of any American voter. We must be wary of escalatory retaliation to follow.

Immediately after receiving this call, Flynn called McFarland using the phone in his Dominican Republic hotel room. They spoke for 11 minutes.

Approximately eight minutes after Flynn and McFarland hung up, at 4:20, Flynn called Sergey Kislyak from that same hotel room phone to a phone at the Russian Embassy wiretapped by the FBI. The person who transcribed the intercept observed that it sounded like Flynn might be using his speaker phone.

On the call, Flynn raised the sanctions. He asked the Russian Ambassador not to box the Trump Administration in and further asked not to escalate things to avoid getting into a tit-for-tat.

Approximately 12 minutes after the end of Flynn’s call with Kislyak, KT McFarland responded to Bossert’s email, claiming Flynn would call Kislyak later than evening, yet quoting the phrases “tit-for-tat” and “box” Trump in directly from the call Flynn had just made to the Ambassador — the one the transcriber believed may have been made on a speaker phone.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Either because Trump’s incoming Homeland Security advisor was, like Bannon, also conducting this discussion on his personal email (Kislyak would make a comment that may reflect knowledge of the email exchange in his next call with Flynn) or because he somehow had access to his Transition email later, Tom Bossert was able to share this very damning exchange with investigators before they obtained the counterparties to it using a warrant.

Between the time of the Kislyak call and the time when Bossert shared those emails with investigators, he would be involved in the alteration of the MemCon recording Trump’s first face-to-face meeting with Russia, in which Trump said he didn’t much care that Russia had interfered in the election.

Tom Bossert has seen firsthand, more than once, how Trump has refused to hold Russia accountable.

Which is very interesting background to this NYT op-ed Bossert wrote, trying to convince his former boss to put the national interest ahead of his own temper tantrum and respond with leadership and cooperation to the SolarWinds hack.

After describing what a dangerous time a Presidential transition is for such a compromise, Bossert lays out the significance of the SolarWinds hack, explaining that the US government has no idea which of its networks Russia has control over.

The magnitude of this ongoing attack is hard to overstate.

The Russians have had access to a considerable number of important and sensitive networks for six to nine months. The Russian S.V.R. will surely have used its access to further exploit and gain administrative control over the networks it considered priority targets. For those targets, the hackers will have long ago moved past their entry point, covered their tracks and gained what experts call “persistent access,” meaning the ability to infiltrate and control networks in a way that is hard to detect or remove.

While the Russians did not have the time to gain complete control over every network they hacked, they most certainly did gain it over hundreds of them. It will take years to know for certain which networks the Russians control and which ones they just occupy.

He then explains that with that access, the Russians could alter data (at Treasury, among other places) or impersonate people, potentially using official credentials to sow disinformation.

The actual and perceived control of so many important networks could easily be used to undermine public and consumer trust in data, written communications and services. In the networks that the Russians control, they have the power to destroy or alter data, and impersonate legitimate people. Domestic and geopolitical tensions could escalate quite easily if they use their access for malign influence and misinformation — both hallmarks of Russian behavior.

Bossert provides some steps the government must take to respond — including replacing entire networks — and then turns to advising his old boss. He starts with soft-pedaling, the way one has to when advising a President who is a narcissist, suggesting that Trump’s threats to veto an NDAA that broad majorities of both parties support because he’s mad at Twitter are instead a partisan dispute.

The National Defense Authorization Act, which each year provides the Defense Department and other agencies the authority to perform its work, is caught up in partisan wrangling. Among other important provisions, the act would authorize the Department of Homeland Security to perform network hunting in federal networks. If it wasn’t already, it is now a must-sign piece of legislation, and it will not be the last congressional action needed before this is resolved.

Then Bossert gets more direct: Trump has to rebuke the Russians in a way he refused to in December 2016 and refused to do again in May 2017 and refused again in July 2018 in Helsinki (though Bossert had been fired before Helsinki).

While all indicators point to the Russian government, the United States, and ideally its allies, must publicly and formally attribute responsibility for these hacks. If it is Russia, President Trump must make it clear to Vladimir Putin that these actions are unacceptable. The U.S. military and intelligence community must be placed on increased alert; all elements of national power must be placed on the table. [my emphasis]

Bossert then gets close to, without actually, describing how Trump could be blamed for this if he doesn’t punish Russia.

President Trump is on the verge of leaving behind a federal government, and perhaps a large number of major industries, compromised by the Russian government. He must use whatever leverage he can muster to protect the United States and severely punish the Russians.

And, finally, the guy who got sent out to report back on President Obama four years ago to prepare Flynn for a call that Bossert probably had no way of knowing would undermine sanctions designed to punish Russia for the last attack, tells his former boss, who from start to finish has refused to cooperate with Democrats, that he has to cooperate now.

At this moment, the two teams must find a way to cooperate.

President Trump must get past his grievances about the election and govern for the remainder of his term. This moment requires unity, purpose and discipline. An intrusion so brazen and of this size and scope cannot be tolerated by any sovereign nation.

We are sick, distracted, and now under cyberattack. Leadership is essential.

Tom Bossert is trying to convince his former boss to serve the good of the country when Bossert never managed to do that when he actually was Trump’s direct advisor.

He would do better to threaten to make it clear the degree to which Trump has been “colluding” with Russia all along.

Update: Relatedly, Trump’s White House tried to gag IC leaders from reporting on how bad this is to Congress.

Rubio’s counterpart on the committee, Vice Chair Mark Warner (D-Va.), said the government is “still assessing the extent of the penetration,” but lamented that “the current president of the United States has not said a word about this.”

Despite the series of briefings, there are signs that the White House was trying to muzzle top officials seeking to fill in lawmakers on what they know.

During a National Security Council meeting on Tuesday night, national security leaders were instructed not to reach out to Capitol Hill for briefings on the massive hack without explicit approval from the White House or ODNI, according to people familiar with the episode.

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The Claim that Billy Barr Didn’t Release Any Investigative Information During the Election Is False

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Even before Billy Barr’s obsequious resignation, he and his handlers had been working the press to boost his tainted reputation. Consider not one (dated December 10) but two (dated December 14) WSJ stories boasting about how Barr kept the Hunter Biden investigations from going public. The WSJ lauds Barr for doing things that he pushed to have Peter Strzok and others prosecuted for also doing in the Russian investigation (one theory that John Durham and Jeffrey Jensen pursued is that because Strzok didn’t approve NSLs against Mike Flynn in November 2016 he had no basis to do so in February and March 2017).

Mr. Barr took more steps than previously reported to insulate the investigations, despite calls from President Trump and Republican allies to announce a probe involving President-elect Joe Biden’s son Hunter.

Mr. Barr and senior department officials relayed the instructions in conversations with prosecutors, questioning whether their staff members could be trusted and warning against issuing subpoenas or taking other steps that might become public, some of the people familiar with the matter said.

It’s full of fawning praise that accepts as true that Barr would never reveal information from an ongoing probe.

As the election drew nearer, calls from Mr. Trump and some Republican allies for the investigations rose in urgency. Mr. Barr and other top Justice Department officials resisted inquiries from several Republican lawmakers and their staffs for information on whether investigators were examining Hunter Biden, two people familiar with the matter said.

“It’s not even debatable that it is wrong for anyone in the chain of command at DOJ, especially the top law enforcement person in the country, to reveal an ongoing confidential criminal investigation. And Bill Barr was not going to do that,” said Richard Cullen, a former U.S. attorney and longtime friend of the attorney general.

The WSJ even points to the Scott Brady investigation, without noting what happened to it during the investigation.

After the acquittal, Mr. Barr announced that the U.S. attorney in Pittsburgh, Scott Brady, would receive and review information related to Hunter Biden and Ukraine from Mr. Giuliani.

As the NYT reported, Brady was pushing the FBI to do stuff they deemed inappropriate, particularly during an election year. It sounds like, to the degree that these investigations remained secret, that was due more to the FBI than to Barr or his hand-selected partisan US Attorney.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.

The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

[snip]

Still, Mr. Brady pressed the F.B.I. to do more, officials said. The agents found ways to ostensibly satisfy Mr. Brady without upending the election. It is not clear how they compromised, but agents could have investigated more discreetly, like questioning witnesses they were confident would keep quiet or checking databases.

WSJ addresses the Durham investigation this way in its last three paragraphs.

Mr. Barr soon after ordered an investigation into the origins of the FBI’s 2016 probe that had led to Mr. Mueller’s appointment. Mr. Barr openly contemplated releasing the results ahead of November’s election. He told The Wall Street Journal in August the department’s election-sensitivities policy did not apply because the previously announced inquiry did not “reach to Obama or Biden, and therefore the people under investigation are in fact not really political figures.”

Then, the federal prosecutor leading that review, John Durham, hadn’t completed his work in time. Mr. Durham’s deputy resigned in part over concerns that Mr. Barr would use the findings for political gain, the Journal previously reported. Mr. Trump and his allies said they hoped some findings would be released before the election. Mr. Durham hasn’t commented on his team’s work.

In October, Mr. Barr appointed Mr. Durham special counsel, meaning he can only be removed for cause and likely leaving the probe for his successor to address. He didn’t disclose that appointment until Dec. 1.

I’m not sure how a piece that describes Nora Dannehy’s resignation can claim — anywhere — that Barr worked hard to keep investigative information secret. He tried to do the opposite, and failed, at least with respect to the Durham investigation.

But what he did in response should disabuse any journalist of the claim that Barr tried to keep investigative information secret.

In the 60 days leading up to the election, the Jeffrey Jensen released an interview report — from a witness that John Durham surely also interviewed — that was so obviously intended for political effect that it left out key details and evidence from the investigation into Mike Flynn and invited a pro-Trump FBI Agent to make accusations about Mueller prosecutors he didn’t even work with. The report was also redacted so as to hide material, complimentary information about the Mueller investigation.

At the same time, the Jensen investigation released a package of exhibits also reviewed as part of the Durham investigation, at least three of which had been altered, including to have their protective order footers removed:

One of the alterations — a misleading date falsely suggesting Biden played a role in the Mike Flynn investigation that DOJ knew well Bob Litt actually played — was used by Trump to make an attack on Joe Biden.

It is simply false to say that Barr didn’t release investigative information affecting Joe Biden. Indeed, under his micromanagement, Jensen did far worse than Jim Comey did in 2016, because the information was packaged up

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