The Zombie Case against Trump’s Indicted Co-Conspirators

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Jack Smith signed the motion to dismiss the January 6 case against Trump, but his appellate lawyer, James Pearce, (digitally) signed the parallel request before the 11th Circuit.

Who knows whether that means anything.

But now that Smith has committed to sustaining the appeal of Judge Aileen Cannon’s decision as it applies to Walt Nauta and Carlos De Oliveira, someone needs to take over the case and write the reply, which is due on December 2. Pearce has done the primary work for all Jack Smith’s appeals and so could do so here — or, perhaps Jack Smith will close up shop, along with Pearce, and let Solicitor General Elizabeth Prelogar take over before she’s replaced by John Sauer in January.

One way or another, there’s likely to be a transfer of the Zombie case back to DOJ, where it will be suffocated with pillows never to be heard from again.

The decision to sustain the Nauta and De Oliveira case just long enough for Trump to shut down next year has certain ramifications I only touched in passing in this discussion with Harry Litman about what we might get in a report from Jack Smith, which is probably more accessible than this post about what declination decisions we might see (transcript here).

First, they’ve got due process rights. Meaning, you can’t say anything in a report that might endanger their ability to get a fair trial (a trial they’ll never face, of course). That may lead to redactions of the sort we saw in the original Mueller Report but which were re-released under FOIA. Or it may lead prosecutors to gloss certain things — such as the obstruction — in the report. In the chat with Litman, I noted that ABC reported that Walt Nauta and Trump went back to Mar-a-Lago after hiding documents from the FBI, which might make the report. But if it appears in there, it would need to be presented in such a way to protect Nauta’s due process rights.

It’s possible, even, that until the appeal, DOJ would avoid describing the investigative steps taken in the documents case after Smith was appointed in November 2022. The logic of Cannon’s opinion basically wiped out all that investigative work. Poof. Though it’s possible that Julie Edelstein and David Raskin — who left Smith’s team in October — have done something to recreate some of the work, such as the declassification that had happened in advance of an imagined Florida trial.

Meanwhile, sustaining the case against Nauta and De Oliveira creates an interesting dilemma for DOJ that may have repercussions for others and Trump’s DOJ going forward: how to get rid of the appeal. He would pay least political capital by just dismissing the appeal. But that would reflect a DOJ stance that Jack Smith was unconstitutionally appointed — something that might bind DOJ going forward (as if Pam Bondi won’t just pick Trumpy US Attorneys to do her dirty work like Bill Barr did) — though that may be unavoidable if Trump’s Solicitor General and Deputy Attorney General had both argued that Smith was unconstitutionally appointed, as they have.

But that would go some way to arguing that David Weiss’ appointment as Special Counsel is unconstitutional as well. It might give Hunter Biden, if his father doesn’t pardon him (and Alexander Smirnov, if he is convicted next month and not pardoned) cause to enjoin Weiss’ prosecutors from publishing a report; it would also make Hunter’s appeal of his charges far easier, especially in Los Angeles, where Weiss is not the confirmed US Attorney.

Which may be why (as both Litman and I suggested) Trump might want to pardon Hunter — to give the air of magnanimity to unintended consequences of his efforts to kill the case against him. To say nothing of the transparency into Trump’s first term that Hunter might get if he succeeds with his other appeals.

The case against Nauta and De Oliveira will be dead, one way or another, in two months. But until then, it’ll exist as a Zombie, having potentially unanticipated consequences.

Update: The full Jack Smith team has submitted its reply brief.

With Matt Gaetz, Donald Trump’s Myth Cannot Fail — It Can Only Be Failed

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Folks, I know this is bad timing, but in about 20 minutes, I’m going to temporarily shut down comments here, as we’re going to do some planned maintenance. Hopefully it won’t take too long.

I keep thinking back to this June 2023 exchange between Matt Gaetz and John Durham.

It came at the end of Durham’s testimony after delivering his report, in which Durham said a lot of inflammatory things, but ultimately concluded that the allegations of Russian interference should have been investigated, but should have been opened at a lower level of investigation.

After four years, Durham blamed Hillary Clinton for things Russians (like those suspected of filling the Christopher Steele dossier with disinformation) had done. But he hadn’t done the one thing Republicans needed him to do: assert that the Russian investigation was a hoax.

At the end of it, Jim Jordan adopted a tactic he has come to use in his hearings. He took a break for votes, giving staffers a half hour to prepare a rebuttal. And then three Republican members took turns, including Matt Gaetz for his second turn, unrebutted by any Democratic member.

He came prepared.

Gaetz cued up video from Robert Mueller’s July 2019 testimony, showing Jim Jordan grilling Mueller about Joseph Mifsud. Jordan asserted that Bill Barr and John Durham were trying to find out what Mifsud was doing. After Durham responded that they did try to pursue that angle, Gaetz asserted that Durham’s investigation was “an op.”

You had years to find out the answer to what Mr. Jordan said was the seminal question, and you don’t have it. It just begs the question whether or not you were really trying to find that out. Because it’s one thing to criticize the FBI for their FISA violations, to write a report. They’ve been criticized in plenty of reports. Some have referred to your work as just a repackaging and regurgitation of what the Inspector General already told us. So if you weren’t going to do what Mr. Jordan said you were going to do in that video, and give us the basis for all of it, what’s this all been about?

Now, in point of fact, who Mifsud really was was never the seminal question. Or rather, he only ever became a question via conspiracy theories Jordan and Mark Meadows laundered through a sham Congressional appearance from George Papadopoulos. Under their direction, the Coffee Boy provided no primary documentation with which staffers could hold him to account. Instead, Papadopoulos laundered conspiracy theories first posted in right wing propaganda outlets.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. [my emphasis]

And that’s what led Barr and Durham to jump on a plane together and chase Papadopoulos’ conspiracy theories — without ever interviewing Papadopoulos directly. Mifsud’s own lawyer — the one who couldn’t help Durham figure out how to subpoena him — who started the conspiracy theory that Mifsud worked for Western, not Russian, spies.

Durham and Barr did more than just chase Papadopoulos’ conspiracy theories together. Durham fabricated a key part of the theory of his case. He ignored key events — most notably, Trump’s invitation for Russia to hack his opponent — that made all the actions of Hillary’s people make sense. He relied on a Twitter account as the foundation of his indictment against Igor Danchenko, then whined when such communications were deemed inadmissible without a witness to introduce them.

Yet ultimately, the rules of criminal procedure and some very very good defense attorneys (no doubt paid with life savings) managed to thwart Durham’s efforts to spin from his own fevered imaginations a conspiracy implicating Hillary Clinton.

For that, Matt Gaetz accused Durham of “inoculating” the FBI.

Your report seems to be less an indictment of the FBI and more of an inoculation — lower case I, of course. And like many inoculations, it may have worse consequences down the road. It’s just hard to pretend as though this was a sincere effort. When you don’t get to the fundamental thing that started the whole deal.

Because reality ultimately debunked Durham’s conspiracy theories, Gaetz deemed him to be part of the Deep State.

I get that Matt Gaetz’ nomination is one of the most likely to be rejected by the Senate. I get that there’s still a chance this guy — the guy who proclaims even a fellow conspiracist part of the Deep State if he permits himself to discover that reality doesn’t back his fever dreams — won’t be Attorney General.

But this is what it means that Trump wants to take a hammer to DOJ and FBI: not just that they’ll avoid any investigations implicating Trump or his allies, but they will find a way to meld reality to their own myth.

As it was, Bill Barr’s DOJ added post-it notes to evidence in ways that happened to feed Trump’s myth of grievance. They claimed travel records of the informant with something akin to a Let’s go Brandon cap matched his claims about Joe Biden accepting a bribe when, purportedly, the opposite is true.

Bill Barr’s DOJ already made shit up to feed Trump’s myth.

Since then, a Trump judge admitted a laptop full of evidence at a criminal trial with little more validation than an access to an iCloud account to which multiple outsiders had access, and an email sent to a publicly available email address.

But whoever Trump installs atop DOJ will take all this one step further. No longer will it be a select crony US Attorneys who forget to remove post-it notes with erroneous but convenient dates or claim travel records say the opposite of what they actually say. It will be the litmus test from the top: Donald Trump’s myths cannot fail, they can only be failed.

Update: Gaetz has withdrawn from consideration.

David Weiss Dons His “Let’s Go Brandon” Frame

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In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “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. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

November 1: Government motions in limine

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

October 31: Government response to motions in limine

The Orbanization of US Politics Began Years Ago

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In this post, I posited a way of understanding the election. Where Kamala Harris and down ballot Democrats engaged in traditional politics, it worked (as exhibited by Harris’ better performance in swing states and the retention of at least four of the swing state Senate seats, among other things). But propaganda worked far better across the board (exhibited, in part, by the large numbers of disaffected voters who supported Trump because they believed false claims about his policies or were mobilized by propaganda campaigns stoking fear).

Since I wrote the post, the election results have actually gotten a lot closer. Trump won by a lower percentage of the popular vote than Joe Biden did (and only just cracked 50% of the vote), and like Biden, won by narrow margins in the states that mattered.

If I’m right about that dynamic — that politics worked but propaganda worked far better — then it means much of the post-election soul-searching is misplaced (and, indeed, a dangerous misallocation of focus). That’s because Harris lost, in part, because of media disfunction, because electoral choice became dissociated from political persuasion more than any recent US election, largely due to an assault on the press and rational thought.

All this builds on Fox News and other institutions of right wing propaganda — though, partly because of the Dominion judgment and partly because Pete Buttigieg had started to crack through that facade, that’s an area where Dems did important work.

It builds on the hollowing out of the traditional press that has been happened for years, as corporate raiders turn news into a profit center. Several things made that worse, this year. As WSJ reported the other day, social media referrals to legacy newspapers cratered last year.

This was a deliberate choice by gatekeepers to dramatically alter their function, from a referral service to a disinformation swamp. But it had an immediate affect on the readership of those legacy outlets and other services relying on them, effectively neutering their power. (One reason I recommend Bluesky over other Xitter alternatives is because Bluesky encourages outlinks.)

At the same time, the oligarchs who own those papers shifted their priorities in ways that would have more subtle impact on the coverage. WSJ, which has flourished in spite of the media environment, nevertheless fired a bunch of journalists in spring, targeting local news and, anecdotally, a certain profile of journalist. Jeff Bezos taunted WaPo’s reporters with their declining influence when he brought in Will Lewis, a Murdoch retread with a history of protecting the boss, and Will Lewis reveled in the kind of ethically problematic both sides journalism that chases manufactured scandals as much as GOP crime. Bezos taunted his journalists again when he declined to endorse Kamala Harris, only to issue a simpering congratulations once Trump won.

There’s still a lot to unpack about the turn of the oligarchs (I’ve left out their embrace of AI because I hope even they will soon have to concede that AI hasn’t replaced human workers but it has enshittified their product). But when a number of these things all happened in spring, I remember wondering whether all the oligarch owners had gotten together in a room and decided to make their product worse in an election year, all in the name of chasing different kinds of influence.

Partly, they’re trying to compete with podcasts. And while there’s a lot to be said for the authenticity of podcasts, it’s another industry driven by algorithms, and some of the key platforms cater to far right politics.

Before we turn to Musk, consider that Trump used manufactured grievances — including the goddamned Hunter Biden hard drive!! — from 2020 to bully Mark Zuckerberg in advance of the election. It’s unclear to what degree Zuckerberg’s efforts to depoliticize Meta stem from fear, from a desire for another tax cut, or from a genuine solidarity with his oligarch brothers. Whatever the motive, Threads was built not to replicate what Twitter used to be, yet it continues to be the destination for journalists exercising no critical thinking of what they need from a new social media platform. And Meta sold at least a million dollars in ad spending that violated Meta guidelines. Something led Zuckerberg to reverse his prior support for democracy, and it had a significant effect on the election.

Ah, Elon Musk. Perhaps his original motivation for buying Xitter was simply the imagined moral injury his ego suffered when Grimes ditched him to (briefly) date Chelsea Manning and his daughter, Vivian Jenna Wilson, transitioned (since the election, Wilson has announced she’s leaving the US for a country more welcoming to trans people). But the plan definitely took shape in the aftermath of January 6. It appears to have taken shape with the kibbitzing of Stephen Miller.

Musk — aided by David Sacks — played a key role in the kind of operation we see in the Viktor Orbán regime, but which happened in order to install Trump for a second term. By giving Substackers who were willing to misrepresent primary documents access to Xitter’s documents, Musk created a false narrative about moderation, pitching voluntary efforts to protect democracy as instead efforts to censor far right speech. That, in turn, gave demagogues in Congress the opportunity to create the appearance of substantiating that narrative with an investigation into the people who formerly moderated social media. This investigation resulted in legal costs and death threats to those involved — but only easily debunked propaganda reports that melt under the least scrutiny.

Nevertheless, those investigations have an enormous chilling effect. Paired with lawsuits against entities like the Stanford Internet Observatory, they disrupted most of the infrastructure attempting to limit disinformation on social media.

When Congressmen like Jordan and James Comer investigate, they aren’t bound by mere facts. They invent wildly. But with the help of process-oriented Congressional beat journalists, they still manage to tell their tales anyway. Such journalists report what Jordan and Comer said and who they’ve subpoenaed with almost no scrutiny of whether any of it makes sense. Those beat journalists are getting played.

This is precisely the kind of persecution of civil society at which Viktor Orbán has excelled. Many people are just beginning to think of what will come, but (as Renee DiResta, one of the targets of Jim Jordan’s wrath, keeps noting on Bluesky), what will come already started, years ago, and accelerated two years ago in earnest.

The election result significantly built on these prior Orbanization efforts. Certainly, Xitter became the cesspool of disinformation that researchers formerly combatted. Musk favored pro-Trump speech and seems to have throttled others (though some of Musk’s Terms of Service and API changes make it far harder to quantify). That favored speech includes his own, from the day he endorsed Trump.

And it wasn’t just the assault on moderation. Congress also targeted state and local prosecutors, the professionalization of the FBI, FTC Commissioner Lina Khan, any pushback on Elon Musk, and even government efforts to protect against Russian influence operations. The lawsuits against media outlets — even the embarrassingly frivolous ones launched by Devin Nunes, and the efforts to co-opt oligarch owners, also played a role. The Hunter Biden witch hunt, with its mythical foundation in the laptop that is not a laptop, its projections of corruption, the constant narrative it fed right wing propaganda (drowning out even Ron DeSantis’ bid to challenge Trump), was undoubtedly a big part of Joe Biden’s terrible approval ratings, and it is precisely what we’ll see all the time going forward.

We can’t assess the election without assessing the degree to which such efforts impacted the race. We sure as hell can’t discuss how to win the next election without thinking of how Republicans will work to further neuter liberal and nonpartisan civil society that protects democracy. Some of the biggest supporters for Kamala Harris will spend the next four years fighting to protect their professional lives and, in some cases, even their freedom.

The same disinformation researchers who’ve been evicted from safe university posts did their job in at least documenting what happened and in real time the press tracked what they were seeing (and what dedicated journalists found themselves). Next time, however, both the disinformation researchers and the press will be under more sustained assault (or, via their oligarch owners, cooptation), both via targeting their funding and creating more scapegoats to chill such work.

So if you want to think about the next election — if you’re optimistic enough to assume there will be a next election — you have to factor in the assault on civil society that has already started and will ratchet up in the next few years.

The Media Started Capitulating to Trump with Russia Russia Russia

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I took a few days to go wander around Paris.

In the meantime (as Nicole and I discussed on Friday), the WaPo has subjugated itself to Donald Trump by spiking an endorsement of Kamala Harris.

Whatever else WaPo and LAT’s capitulation to Trump has done, it has focused attention on media failures this year.

I concluded back in February that the media was not going to help hold Trump accountable this year. I concluded that when zero traditional outlets pursued the story of how Donald Trump’s DOJ used a side channel to ingest dirt Rudy Giuliani collected from — among others — known Russian spies to criminally frame Joe Biden, with the Alexander Smirnov bribery allegation.

One candidate’s DOJ criminally framed the other candidate and it has been simply ignored.

That’s not the only way the media has failed. Hell, there have been maybe two stories about Trump’s abuse of pardons. There has been no scrutiny about whether Trump works for the Saudis, rather than the American people. We don’t talk about the fact that Trump stole 100 classified documents, and probably more we haven’t located.

This failure is not surprising. After all, the first act via which Trump cowed the media came with his success at spinning the results of the Russian investigation.

The Mueller investigation and its aftermath obtained legal judgments that Trump’s Coffee Boy, his National Security Adviser, his campaign manager, his personal lawyer, and his rat-fucker all lied to cover-up what happened with Russia in 2016. That’s an astoundingly productive investigation, one that should keep the issue of what really did happen at the forefront (particularly after Treasury confirmed that Russian spooks did get the internal campaign information Paul Manafort shared). And yet the media has never taken the time to fact check Trump’s Russia Russia Russia chant, via which he dismisses the result of the Russian investigation as a witch hunt. The media never calls him on that lie.

For whatever reason — perhaps ignorance, perhaps exhaustion — the media has allowed Trump to dodge accountability for the help Russia gave him in 2016. They have allowed him to apply a double standard on the Iran and Chinese hacks this year, when Trump invited foreign hacks in 2016. They simply ignored how in advance of 2020, Rudy Giuliani flew around the world soliciting help from — again, this is uncontroversial — at least one known Russian spy, right out in the open.

This is one thing I’ve tried to accomplish with the Ball of Thread series. Here’s how it worked.

  • Trump and the media let the Steele dossier serve as a substitute for the actual things Trump did, both before and after the election.
  • Trump turned an investigation into people grifting off their access to him into an attack on him by the Deep State.
  • Republicans in Congress picked up and expanded the Steele dossier substitution.
  • Along the way, these efforts did real, undoubtedly intentional damage to the FBI, especially those with expertise on Russia.
  • Bill Barr thwarted what was intended as an impeachment referral.
  • In his effort to kill Zombie Mueller, Barr created propaganda about the investigation and Joe Biden and laid the groundwork for January 6.
  • The Durham investigation criminalized Hillary’s victimization by Russia.
  • Bill Barr helped Rudy criminally frame Joe Biden.
  • The Hunter Biden investigation(s) sucked up all the oxygen that should have been focused on Trump.

This is the process by which Trump has stoked grievance out of a Russian investigation that concluded that five top aides lied to hide what really happened.

And the media, to this day, lets him dismiss all that by chanting only Russia Russia Russia.

The media’s surrender, led by Jeff Bezos, to Trump’s authoritarianism is not new. The media has been doing this for six years.

The Habitual Lies on Which Trump Has Built His Attack on Rule of Law

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Credit where it’s due: WaPo has already published two stories this week that attempt to cover Trump like the conman he is, rather than the good faith politician he is often treated as.

Yesterday, Ashley Parker wrote about how Trump spins ridiculous lies to gin up fear against Joe Biden and Kamala Harris.

It is a distorted, warped and, at times, absurdist portrait of a nation where the insurrectionists who stormed the U.S. Capitol on Jan. 6, 2021, to deadly effect were merely peaceful protesters, and where unlucky boaters are faced with the unappealing choice between electrocution or a shark attack. His extreme caricatures also serve as another way for Trump to traffic in lies and misinformation, using an alternate reality of his own making to create an often terrifying — and, he seems to hope — politically devastating landscape for his political opponents.

Later yesterday, Isaac Arnsdorf and Josh Dawsey described what Trump was trying to do with a statement that — among other things — said Trump wanted Florida to take the lead in investigating the Ryan Routh suspected assassination attempt: He was trying to “foment distrust of federal law enforcement.”

His statement sought to implicate President Joe Biden and Vice President Kamala Harris, picking up on other recent remarks blaming them for failing to protect him. There is no evidence that Biden or Harris were involved in any security decisions leading up to the apparent assassination attempts, and Biden has since ordered the administration to provide the Secret Service with every available resource and asked Congress for more funding.

These pieces treat Trump’s language as utilitarian means to accrue power, rather than transparent statements of truth, something that — in my opinion — is necessary to reclaim truth from him. It’s a rare moment of a news outlet applying savviness to the manipulation Trump is attempting rather than how it fits into a campaign strategy.

The means of manipulation are the news, not (primarily, anyway) the measure of their success.

That said, while the Arnsdorf/Dawsey story fact checks two of Trump’s claims,

There is no evidence that Biden or Harris were involved in any security decisions leading up to the apparent assassination attempts, and Biden has since ordered the administration to provide the Secret Service with every available resource and asked Congress for more funding.

[snip]

He also complained that FBI Director Christopher A. Wray, who Trump appointed, testified to Congress in July that he was not certain what struck Trump’s ear at the July 13 rally in Butler, Pa. The FBI quickly clarified that Trump was injured by a bullet or a fragment.

They don’t fact check the lies on which Trump’s grievances are based. For example, they misstate what Trump claimed that Director Wray said:

[T]he FBI Director went before Congress and falsely said that it may not have been a bullet, “It was just glass or shrapnel — a lie condemned by even my worst enemies. What he said was disgraceful, especially since it was witnessed LIVE by millions of people, and he was forced to immediately retract.

This quotation, presented as such, completely misstates what Chris Wray said.

He said, “there’s some question about whether or not it’s a bullet or shrapnel that hit his ear.” As the FBI clarified immediately, what hit Trump was, “a bullet, whether whole or fragmented into smaller pieces.” Bullet fragments are shrapnel.

Wray never raised glass (from the teleprompter).

Similarly, WaPo never debunks Trump’s false claim that the “Biden/Harris DOJ/FBI [have] control over local D.A.s and A.G.s.”

Perhaps the most curious choice, however, is how WaPo defined half a paragraph of shorthand for readers…

In the statement, Trump proceeded to recite a long list of legal problems that he attributed to his political opponents, using shorthand familiar to his fans, including:

  • “Russia, Russia, Russia,” meaning special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election
  • “Impeachment Hoax Number One,” again meaning the 2019 impeachment, for which the Senate acquitted him; and “Impeachment Hoax Number Two,” meaning his 2021 impeachment for inciting the Jan. 6 attack on the U.S. Capitol, again resulting in acquittal
  • “the Lawless Documents Hoax,” meaning the court-authorized search of his Mar-a-Lago estate as part of a federal prosecution for mishandling classified documents, which a Trump-appointed judge dismissed in July
  • “the January 6th Hoax” and “the J6 Unselect Committee,” meaning the House investigation into the attack on the Capitol
  • “the Manhattan D.A.’s Zombie Case,” meaning his conviction in May on 34 felony counts of falsifying business records in a 2016 hush money scheme
  • “the New York A.G. Scam,” meaning New York Attorney General Letitia James’s lawsuit accusing Trump’s businesses of fraud, resulting in a $450 million judgment in February

… without debunking the lies.

For example, DOJ has repeatedly debunked Trump’s claim that the January 6 Committee deleted documents and Republicans haven’t been able to prove it with their majority either.

Letitia James didn’t just accuse Trump and win a judgment, she proved that Trump and his sons are fraudsters.

And the balance of that paragraph includes a set of lies implicating Hunter Biden and his father. Trump invented the quote, “Russian interference and disinformation;” the false claim that the former spooks used the word “disinformation,” rather than “information operation,” has always been central to an orchestrated campaign claiming they lied. Moreover, the letter expressed a non-falsifiable opinion; to this day many of the former spooks who signed it stand by that opinion that the laptop “has the earmarks of a Russian influence operation.” (And contrary to some WaPo reports, FBI has never claimed to have done the things it would need to do to dispute it.)

Nothing in the laptop shows evidence of Joe Biden’s grift (indeed, after six years of investigation, DOJ didn’t substantiate any unlawful grift on the part of Hunter).

In other words, it’s not just the general insinuation that the Deep State can’t be trusted. WaPo is right that Trump uses a lot of shorthand when he attacks the Deep State.

But even that shorthand is riddled with deliberate false claims. In each instance, Trump transforms something that has a perfectly understandable explanation — Chris Wray was trying hard to avoid overstating what the FBI had concluded, the spooks expressed an opinion — and by misrepresenting it, makes it appear far worse, Wray dismissing the seriousness of Trump being hit, former spooks trying to cover for the Biden family.

I don’t mean to be greedy. I’m grateful that WaPo has, at long last, started explaining how Trump exerts his power, rather than treating his false claims as if they were delivered in good faith.

But if we’re going to unpack the very cynical way Trump has deployed lie after lie to get his supporters and the Republican Party generally to hate rule of law, this cumulative process needs to be unpacked. The press has, for years, simply let Trump repeat those underlying claims without contest, as WaPo again does here. None of them are true, but his followers believe them, not least because the press disseminates them in various ways without contest.

There is no underlying basis for Trump’s grievances about the Deep State. None.

To invent that grievance, Trump has created lie after lie, and built them together into a caricature of the Deep State that his loyal followers have been trained to attack.

Why No One Went to Prison for Rudy Giuliani’s Hunter Biden Corruption

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Like many people, I’ve watched From Russia with Lev since it was released the other day.

The documentary tells a story I’ve covered here in real time: of how, with Lev Parnas’ help, Rudy Giuliani solicited dirt on Hunter (and Joe) Biden from foreigners, mobsters, and Russian spies, in hopes of helping Trump stay in office.

As told, with Lev’s spouse Svetlana serving as a key narrator, it’s a compelling, personal story.

I’ve also told — am one of the only people who has told — the story that many people are now asking: why no one went to prison for this caper. The documentary has led many people, understandably, to demand to know why no one (besides Lev, they sometimes say, inaccurately) went to prison for all this, which has, predictably, led to the same conspiratorial bashing of Merrick Garland we saw with the January 6 investigation.

The question is premised on certain choices the filmmakers made: focusing away from Dmitry Firtash and especially from Andrii Derkach (who got involved after Lev was done), crediting the spin of Lev’s attorney, Joseph Bondy, and simplifying the investigation of Hunter Biden. The film doesn’t fill in any of the gaps I noted in Lev’s book, and creates new ones. It creates the appearance that Lev was prosecuted solely to protect Trump from impeachment and that the investigation into Hunter arose solely out of Rudy’s efforts. Those choices make sense for narrative and legal reasons, but as a good story does, it simplifies the issue.

And I promise you, the film vastly understates the corruption that went on. Wildly understates it. One goal I have for Ball of Threads is to unpack what is currently known of that far deeper corruption, but that still just scratches the surface.

The quick explanation of why Rudy didn’t go to prison for this is that:

  • Bill Barr did wildly corrupt things to protect him, Donald Trump, and himself
  • By the time, shortly into the Biden administration, DOJ tried to pursue Rudy, Rudy’s phones were corrupted

Trying to hold Garland responsible for failing to prosecute the underlying crime amounts to doing Bill Barr’s propaganda work, because Barr worked relentlessly to protect Rudy.

You can, however, hold Garland responsible for one thing: the continued appointment as Special Counsel of David Weiss, who as a witness to Barr’s corruption, is conflicted in any investigation pursuing Alexander Smirnov’s attempts to criminally frame Joe Biden.

This post explains all that in more detail.

 

Lev didn’t go to prison for the Hunter Biden stuff

As I said, the film leaves the impression that Lev was arrested to protect Trump during impeachment by silencing the key witness.

But that’s not why Lev went to prison (as a news clip in the movie tacitly admits).

Lev and Igor Fruman (along with David Correia and Andrey Kukushkin) were first charged on October 9, 2019, via indictment that was (according to then US Attorney for SDNY Geoffrey Berman’s memoir) drafted quickly overnight in advance of Lev and Igor’s trip to meet Dmitry Firtash in Vienna. From Berman’s memoir, I’m not 100% sure whether he pushed it because he genuinely feared they were about to flee the country, felt he had to do so before Barr intervened … or for more nefarious reasons.

The charges were:

  • Conspiring to make a bunch of political donations in the name of Global Energy Producers
  • Lying to the Federal Election Commission
  • Falsifying a document to the FEC
  • Laundering donations from Russian Andrey Muraviev to pay pro-cannabis politicians

As Bondy described, the indictment implied that Lev and Igor’s political contributions to Pete Sessions were tied to an attempt to fire Marie Yovanovitch. But that was not charged as FARA.

On September 17, 2020, the indictment was superseded. Lev and Correia’s longterm Fraud Guarantee fraud was added and the charges tied to Muraviev (who was secretly indicted that same day) were bumped up. The paragraph describing a payment to Sessions took out the reference to an Ambassador, describing it instead as to “further their political goals.” There were still no FARA charges though.

Ultimately, Lev was convicted at trial in October 2021 of the GEP and Muraviev donations, and in March 2022, pled guilty to the fraud guarantee charges. He was never charged with FARA violations.

Bondy’s insinuation that SDNY took out the foreign agent aspect to protect Rudy is wholly inconsistent with the warrants (linked below) targeting Lev and Rudy unsealed last year.

They show that the investigation into Lev, which started based on a Campaign Legal Center complaint, initially focused on campaign finance crimes. In August 2019 — after the firing of Marie Yovanovitch but before the disclosure of the Perfect Phone Call — SDNY began to turn to Foreign Agent suspicions (though one of two warrants obtained in August 2019 was not executed). After the arrest, SDNY more aggressively turned to developing the Foreign Agent prong of the investigation. On November 4, 2019, SDNY obtained warrants targeting Rudy (which were not released last year). On December 10, 2019, the Foreign Agent prong continued.

That’s when Bill Barr intervened to kill that prong of the investigation, certainly as it pertained to Rudy, as I’ll lay out below.

After that point, SDNY focused on the Fraud Guarantee fraud.

It’s not that Lev went to prison for this but Rudy did not. On the contrary, Barr worked hard to ensure no one could go to prison on such charges.

While Barr was doing that, SDNY appears to have put that investigation on ice and attempted, without success, to resuscitate once Barr was out of office.

SDNY believed Lev was not fully forthcoming

The film makes it sound like SDNY refused Lev’s efforts to cooperate against Rudy and everyone else.

It’s more complicated than that.

SDNY has a rule: To enter into a cooperation agreement with them, one has to plead to all crimes. Geoffrey Berman described it this way in his memoir, explaining why SDNY didn’t give Michael Cohen a cooperation deal.

Cooperation in the Southern District means full cooperation—taking responsibility for all criminal actions, not just a select few. If any one area of a defendant’s life is off limits, we do not recommend leniency in sentencing. (Some districts are more transactional: you give a little, you get a little.)

When defendants agree to this and become cooperating witnesses against others, their testimony is more credible. Our prosecutors can tell juries that if the cooperator is caught lying, the agreement can be revoked and he or she will be prosecuted not only for the crimes covered at trial but for a host of others that the cooperator copped to as part of his agreement.

The SDNY rules also serve as a powerful investigative tool, because when you acquire absolute cooperation, your avenues for making other cases expand dramatically. We often learn of additional criminal activity—whole new threads of wrongdoing that in some instances we knew nothing about.

That’s one reason why SDNY didn’t give Lev a cooperation agreement. As SDNY explained in their sentencing memo for him, Lev’s attorney, Joseph Bondy, proffered information in the months after his arrest in October 2019. But Bondy provided details that were contradicted by the evidence (at the time, Lev may not have understood that FBI had obtained iCloud content he deleted). SDNY then did a reverse proffer on November 6, 2019 (two days after obtaining a warrant for Rudy’s comms), meaning they told Lev and Bondy all the evidence they had against Lev. After that, Bondy replied saying that Parnas was unwilling to plead guilty to the campaign finance crimes charged against him.

After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

That’s consistent with Parnas’ own memoir, in which he still attributes the campaign finance stuff as a lack of awareness of the law and of the Russian source of the money he was throwing around.

According to SDNY, that unwillingness to fully accept responsibility continued when Parnas did sit for a proffer on March 5, 2020.

In addition, SDNY was unable to corroborate some of the things Parnas claimed in that March proffer.

[T]he Government was ultimately unable to corroborate significant portions of what Parnas said.

This was during a period when Barr was aggressively trying to limit SDNY’s investigation, so it may not have been Lev’s fault they couldn’t corroborate this stuff.

Finally, DOJ generally has a rule: Cooperating witnesses who chat to the press are usually useless as witnesses. This makes sense for a lot of reasons, not least that it alerts criminal targets of what prosecutors do and don’t know. SDNY told Parnas this early on, in November 2019, and his early 2020 interviews would have only exacerbated this.

At the close of that [November 6, 2019] meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness.

Given Barr’s fuckery, I don’t know if Parnas could have pulled off cooperation in any case. But even without it, things he himself did made it virtually impossible he could get a deal from SDNY.

And honestly, it wouldn’t have served his purposes. He needed to come out publicly against Trump, but that was inconsistent with the ability to cooperate criminally. The impeachment was his one shot for accountability, and Congress blew that. (As I was writing this, I considered that, had Democrats made Lev’s testimony more central to impeachment, Republicans might have forced Hunter Biden to testify, as they were threatening at the time; I have long wondered whether Trump’s impeachment defense team had a copy of the laptop.)

Bill Barr insulated the impeachment review from the Hunter Biden caper

The film focuses closely on how, after Trump’s Perfect Phone Call with Volodymyr Zelenskyy was released, onetime Trump defense attorney John Dowd, speaking as a lawyer for Lev and Igor, first refused to cooperate with Congress. Their arrest, days later, put Parnas and Fruman at the mercy of lawyers arranged by Trump, until Parnas hired Bondy.

It is true that their arrest discredited them as witnesses.

But it wasn’t just their arrest that limited the investigation from impacting impeachment. DOJ also did some tactical things to prevent the Trump impeachment from merging with Lev’s prosecution.

When Lev and Igor were arrested, DOJ told the press that Barr had been briefed on the investigation from early in his tenure as Attorney General.

That seems inconsistent with a claim that Barr made in his memoir (which IMO is largely CYA about these matters). Barr claimed he had no awareness of Rudy’s efforts to investigate Biden, and only learned of it from news reports.

By the spring of 2019, I had noticed news stories stating that Giuliani was pushing the Ukrainians to investigate Biden’s role in Shokin’s dismissal. But other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities. During the spring, I expressed my concern about Giuliani with the President. As I was leaving an Oval Office meeting on another topic, I paused briefly to raise the matter.

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”

“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Even imagining that SDNY kept these details from Barr, by August 14, 2019, it is highly likely that the National Security Division had notice of the focus on Rudy. That’s when possible Foreign Agent charges (and a reference to Marie Yovanovitch) got added to the warrants targeting Lev and Igor.

NSD head John Demers was one of the first people at DOJ to review the Perfect Phone Call. He did so, on August 15, 2019, after SDNY had turned to FARA crimes normally overseen by NSD.

That may explain why DOJ did something that served to insulate the Public Integrity (PIN) review of the Perfect Phone call from the ongoing investigation of Rudy’s efforts with Lev and Igor: Demers and Criminal Division head Brian Benzkowski only had PIN review the transcript of the call, not the full whistleblower complaint. Had investigators done what investigators have been ordered to do since 9/11 with the full complaint, they would have searched on all the references in the complaint, including those in the OCCRP report on Lev and Igor referenced repeatedly in it. That, in turn, should have identified the SDNY investigation, which would have immediately implicated Trump in the investigation.

Effectively, by focusing solely on the transcript, someone at DOJ deliberately blinded that PIN review to an ongoing FARA investigation, thereby eliciting a clean bill of health for Trump.

There’s a lot more that Barr did as the scandal unfolded, as I’ve laid out here and here. But the first thing someone at DOJ did was to gin up a prosecution declination before anyone could tie Trump’s coercion of Zelenskyy with the existing investigation into Lev and Igor.

Bill Barr played a shell game to protect Rudy’s “collusion” with a known Russian spy

Barr was nowhere near done.

There seems have been an ongoing cat-and-mouse between SDNY and Barr.

When SDNY got the indictment, according to Berman, they got approval from two PIN prosecutors in the middle of the night, not NSD, which may be why only the campaign finance crimes were in the indictment and only the campaign finance crimes were on the warrants for the searches done the day of arrest (this would have served to hide that part of the investigation from Lev and Igor, too). That’s the biggest piece of evidence that SDNY did not arrest Lev and Igor as a favor for Barr, as he attempted to kill impeachment, but the reverse.

In October, SDNY got warrants to search everything for the FARA crimes. On November 4, 2019, SDNY got warrants targeting Rudy for FARA crimes.

On December 5, 2019, Rudy met, with Barr’s foreknowledge, known Russian asset Andrii Derkach.

And on December 10, 2019, SDNY got further warrants in that investigation.

DOJ had just let Rudy meet with a Russian spy while SDNY had an ongoing investigation into whether Rudy was working with foreign spies. It was insane to let that happen in any case. All the more so given the ongoing investigation from the Sovereign District of New York, as SDNYers like to call themselves.

So Barr had to gut SDNY’s sovereignty.

Barr did several things:

  • Assigned any investigation of Derkach, with whom Rudy had just met, to EDNY, not SDNY where it would be a natural follow-on.
  • Made EDNY US Attorney Richard Donoghue the gate-keeper for all Ukraine investigations, requiring SDNY to get permission from him before taking any investigative steps against Rudy or Lev.
  • Asked Pittsburgh US Attorney Scott Brady to play a role. Publicly, Barr and Brady claimed this was a vetting process of tips from Ukraine. But Brady’s congressional testimony revealed he did almost no functional vetting; he ignored evidence from the impeachment and some key public articles. Plus, he did more than vetting. Brady also checked in on investigations into all the oligarchs from whom Rudy had solicited dirt on Hunter Biden, with uncertain outcome; he tried to tell SDNY he knew better than they did about their investigation; he demanded details about the investigation into Hunter Biden. Most importantly, some yet unidentified person told Brady to seek out FBI informant Alexander Smirnov, who had made a reference to Hunter Biden in an informant report about Mykola Zlochevsky years earlier. By May 2020, Smirnov was allegedly attempting to frame Joe Biden with allegations of bribery, and Brady made that part of his work. Once again with Smirnov’s allegations, Brady did little functional vetting, falsely claiming that his travel schedule confirmed the claim, rather than debunked it.
  • Barred the FBI Agents working with SDNY from receiving certain information, including Rudy’s interview with Scott Brady.
  • Ordered David Weiss, whom DOJ had put in charge of an investigation into DC and CA resident Hunter Biden, to consult with Brady on his tips.

These efforts halted what should have been obvious next steps in the SDNY investigation, ensured Rudy could share information obtained from a known Russian spy with no legal risk, and ordered that some of Rudy’s information be used in an investigation of Joe Biden’s kid. DOJ was literally protecting a Russian influence operation, because it served the interest of the President.

The biggest reason why Rudy didn’t go to prison for this is that Barr protected this entire process, including the solicitation of dirt from a known Russian spy.

DOJ approved steps against Rudy on Lisa Monaco’s first day on the job

While Trump remained in office, SDNY tried several more times to get warrants targeting Rudy, but were denied.

On Lisa Monaco’s very first day on the job, April 21, 2021, SDNY finally obtained warrants targeting Rudy. Merrick Garland’s DOJ did precisely what everyone is wailing for: He immediately permitted prosecutors to advance this long-thwarted investigation.

Based on what we can see, there were at least two limitations on the investigation, however. First, the warrants targeting Rudy did not include the Trump lawyer’s January 29, 2020 interview with Scott Brady. That suggests Rudy’s effort to share dirt from Russian spies was still protected as cooperation rather than confession, even after Garland took over (indeed, that’s what Rudy pointed to to argue he couldn’t be searched at all, his “cooperation” with Barr). Just as importantly, while some of the 2019 warrant affidavits mentioned Donald Trump’s call to Volodymyr Zelenskyy, the 2021 warrants did not. I would be unsurprised if Barr got OLC to write a memo putting all that off limits before they left office.

Aside from that, DOJ’s approach to Rudy Giuliani remained remarkably aggressive, contrary to what virtually every news outlet will tell you. Importantly, SDNY did something no one else has reported: They installed a Special Master and got permission to review Rudy’s content — all Rudy’s post-2017 content — for privilege. Among other things, that freed up content, including at least one document the January 6 Committee did not get, for any other investigations.

Nevertheless, the delay (or possibly corrupt Rudy dead-enders in NY) appears to have killed any chance of pursuing Rudy for his role in soliciting dirt from Russian spies and others to attack Hunter Biden. On November 14, 2022, SDNY informed the court that the grand jury had concluded without filing charges (though Rudy’s lawyer and Hunter Biden laptop co-conspirator, Robert Costello, has never substantiated a declination letter). In a July 25, 2023 declaration in the Ruby Freeman lawsuit, Costello revealed one potential explanation: many of the devices seized from Rudy obtained in April 2021 were corrupted. Costello blamed the FBI’s contractor for making the phones unusable.

Not all the devices were corrupted, however. As noted, the privilege log from Freeman’s case shows a great deal of files pertaining to January 6 were successfully extracted, including a few identifiable files not obtained by the January 6 Committee.

DOJ also seized a phone from Victoria Toensing. But the value of that may have been limited by attorney-client privileged tied to Firtash, the same privilege which has, at times, led Lev (because he was a translator in that relationship) to limit his own comments about Firtash in all this. To fully unpack what happened, you’d need to know what promises Toensing made to Firtash and what Barr knew about them.

Attorneys General have vast discretion

In a just world, Bill Barr could be held accountable for the corruption he enabled. But that’s virtually impossible under the structures of impunity our system accords prosecutors and Attorneys General.

I’m neck-deep in a post on the three IG investigations pertaining to Bill Barr’s corrupt conduct.

All of them conclude that however nuts Bill Barr’s conduct was, the expansive authority of the Attorney General means that his actions, including his intervention into the sentencing for Trump’s rat-fucker and his decision to share details of minor infraction by someone whom Barr knew would never be charged for political gain, were within the discretion of the Attorney General.

DOJ IG has spent over four years investigating Barr’s corruption, and thus far, they have always concluded that as Attorney General, Barr’s discretion was so vast that he can break all of DOJ’s rules prohibiting its politicization.

There’s still at least one IG Report including Barr’s conduct outstanding (almost certainly, the ongoing investigation into DOJ getting the communications records of journalists for whom people like Jim Comey might have been a source). But of all the fuckery I know Barr to have committed, I can envision only a few details of his conduct might even remotely end up the focus of criminal investigation.

Even the most corrupt insinuations about Rudy’s efforts, in which Rudy allegedly offered Ihor Kolomoyskyi, Dmitry Firtash, and Mykola Zlochevsky relief from criminal investigations for dirt on Hunter Biden, would be included in this.

Lev explains why in his book: This was deliberately framed as the exact equivalent of Andrew Weissmann’s efforts to flip Firtash for information on Paul Manafort.

Andrew Weissman, who was lead prosecutor for the investigation of Russian collusion in the 2016 Election, had gotten there first. He offered a deal in which Firtash could avoid prison if he testified about the relationship between Trump and Russian President Vladimir Putin. The inclusion of Putin meant that Firtash would never take the deal. Nobody over there wants to make Putin angry.

Nobody else knew about the deal he was offered. Giuliani and Solomon wanted Firtash’s legal team to make it public. His Viennese lawyers were against it, so Firtash was reluctant. Soon, in a heated meeting in Vienna, an argument between some of Firtash’s legal team led to Victoria Toensing, who was on our team, confronting Dan Webb about it months later. Webb — who was connected with Weissmann, William Barr and other heavy hitters — admitted to the deal.

Still, we convinced Firtash that we — who were representing Trump’s interests — could help him with his extradition far more effectively than Weissman. The real goal for us was to get Firtash to use his contacts to pressure President Zelenskyy to announce an investigation of the Bidens. Our pitch was successful, Firtash agreed to hire Giuliani for $1 million. And $200,000 for me to be official translator and to be under the attorney-client privilege umbrella.

Prosecutors trade leniency for information on other crooks all the time. Here, however, it was the Attorney General, who had never served as a prosecutor himself, who would be making those deals, offering leniency to foreign oligarchs if they could offer dirt on Donald Trump’s likely opponent.

It’s unclear whether, and if so what, deals were made: an investigation into Zlochevsky was reportedly shut down in December 2019; investigations into Kolomoyskyi ratcheted up in 2020; and the prior investigation into Dmitry Firtash remains deadlocked on his extradition, as it has been for years.

But these kinds of deals would be consistent with an elaborate effort Barr makes in his book to spin Trump’s pursuit of dirt on the Bidens as a legitimate law enforcement pursuit, the logic of Trump’s impeachment defense taken to its logical conclusion.

It’s all transparent bullshit. But it would also be virtually impossible to debunk at trial, even if you could get beyond the vast discretion of an Attorney General.

David Weiss’ appointment threatens to limit further fallout

There’s one thing I do fault Merrick Garland for: For not removing David Weiss from the investigation into Alexander Smirnov.

By all appearances, Weiss asked to be appointed Special Counsel only after he renewed his focus on Smirnov in July 2023, after receiving, but blowing off, the allegation days before the 2020 election, on October 23, 2020.

Investigating Smirnov’s allegation that Joe Biden accepted a bribe from Burisma was the first thing that focused the investigation onto Biden, after the original prosecutor, Lesley Wolf had successfully avoided that focus for years. It was the first thing that created a real conflict with working for Joe Biden.

And Weiss bases his authority to prosecute Smirnov for lying when he started chasing that hoax on his Special Counsel authority. He could only do so if he were legitimately chasing that hoax as witness testimony.

Here’s the problem with that: David Weiss is a witness in what should be a broader investigation into how a side channel set up by Bill Barr ended up discovering an informant who once met Mykola Zlochevsky and then not vetting the false claims he made. At the very least, there should be an investigation into who — everyone swears it was not Rudy, and Smirnov has at least three other links to people close to Trump — alerted Brady that Smirnov might offer up such claims.

Bill Barr’s deputy ordered David Weiss to accept briefing on this hoax. He ordered him to let Scott Brady snoop on Weiss’ investigation of Joe Biden’s kid. That makes Weiss a witness. Once Smirnov became a subject rather than a witness, that created a conflict that should disqualify Weiss from overseeing an investigation into the former informant and the circumstances that allowed him to make allegedly false allegations against Joe Biden.

Merrick Garland should (at a minimum, though I could argue more broadly) move the primary team prosecuting Smirnov under supervision without such conflicts. A system set up by Bill Barr criminally framed Joe Biden, and a guy who worked with Bill Barr on that case continues to supervise the aftermath.

The complicity of the press

There’s one more party that demands accountability: The press.

Much of what I wrote in this post is public. It requires diligent reading, but not great access to Donald Trump or anyone else.

Not only has this entire story not been reported by mainstream outlets. Not only did NYT affirmatively obscure Rudy’s role in all this (and therefore Trump’s) in their one attempt to cover it. But one after another journalist — especially at NYT — writes stories that disappear the Hunter Biden pursuit from all of Trump’s abuse of DOJ. Indeed, some outlets, including Rachel Maddow’s parent company, seem to treat Hunter Biden as a gossip rag to drive clicks, rather than the locus of unprecedented corruption. Rather than chasing this story, or even asking Bill Barr direct questions about it, one after another TV star invites him on as if he’s a critic of Trump’s corruption, rather than a key player in it. WaPo’s Will Lewis pointed to a badly conflicted Hunter Biden piece as his antidote against accusations of lefty bias.

Want to know how Rudy Giuliani was allowed to solicit dirt from Russian spies to help Trump get elected, without accountability? Want to know why Barr is considered a critic of Trump rather than his most corrupt enabler? Ask the journalists who lost interest in that story as soon as Rudy released a laptop full of Hunter Biden’s dick pics.

From Russia with Lev begins to reverse all that. But as infuriating as it is, it barely scratches the surface.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing. This document compares the Foreign Agent focus of the three warrants bolded below.

  • January 18, 2019, 19 MJ 1729: Yahoo and Google content

May 15, 2019: Marie Yovanovitch firing public

  • May 16, 2019, 19 MJ 4784: iCloud content
  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7594: Unknown warrant
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9830: Unknown warrant
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrant for Rudy’s iCloud
  • November 4, 2019: Warrant for Rudy’s email
  • November 4, 2019: Warrant for Victoria Toensing’s iCloud
  • November 6, 2019: Warrant for Yuriy Lutsenko’s email

December 5, 2019: Rudy meets with known Russian asset, Andrii Derkach

  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram
  • December 10, 2019, Warrant for Roman Nasirov’s email
  • December 13, 2019, Warrant for Victoria Toensing’s email

December 14, 2019: Barr aide texts him: “Laptop on way to you”

January 3, 2020: Barr establishes dedicated channel to ingest Rudy’s dirt

January 17, 2020: Jeffrey Rosen makes Richard Donoghue a gatekeeper for all Ukraine-related investigations

  • February 28, 2020: iPhone of Alexander Levin
  • March 3, 2020: iPad of Alexander Levin
  • March 20, 2020, 20 MJ 3074: Fruman iCloud content obtained with October 21, 2019 warrant to cover earlier periods

June 20, 2020: Barr fires Geoffrey Berman

November 2020: SDNY denied authority to seek devices of Rudy Giuliani

January 2021: SDNY denied authority to seek devices of Rudy Giuliani

  • April 13, 2021: Cell site data for Rudy and Toensing

April 21, 2021: Lisa Monaco sworn in

  • April 21, 2021, 21 MJ 4335: Rudy’s office, residence, and devices
  • April 21, 2021: Victoria Toensing iPhone

ABC Treats Kamala’s 21-Year Old Misstatement about Prosecutions as News but Not Trump’s Daily Lies about His Own Crimes

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

TRUMP: What – what’s your question?

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

The second one (ph) …

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

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

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

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

(LAUGHTER)

… this is worth $18 million.

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

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

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

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

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

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

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

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

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

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

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

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

Crowd size.

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

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

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

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

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

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

In Attempting To Claim WaPo Doesn’t Chase Rat-Fucks, WaPo Lies about Chasing Rat-Fucks

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I’m the rarity among lefties who supports the decision of Politico, WaPo, and NYT (thus far) to not publish the actual files that a persona suspected to have ties to Iranian hackers sent them. That’s true, partly because I think this hack could be even more dangerous than the one of Hillary. But it’s also true because of the opportunity cost that publishing stolen documents incurs.

I prefer Kamala Harris’ message to remain the affirmative message she’s running on, and to the extent that those outlets are doing reporting like the story further developing the suspected $10 million payment via Egypt to Trump, I’d like them to continue to pursue real reporting, as well.

One of the real impacts of the files Russia hacked in 2016 is that they distracted journalists from harder work, work about what a corrupt man Trump is. Campaign reporters are already distracted too easily by nonsense stuff; they don’t need any further distractions from their day job.

That said, reporters don’t have to publish the actual documents to address something that is clearly newsworthy about the files. As Politico explained, the main thing the persona has sent so far was a draft of the vetting document for JD Vance and Marco Rubio.

A research dossier the campaign had apparently done on Trump’s running mate, Ohio Sen. JD Vance, which was dated Feb. 23, was included in the documents. The documents are authentic, according to two people familiar with them and granted anonymity to describe internal communications. One of the people described the dossier as a preliminary version of Vance’s vetting file.

The research dossier was a 271-page document based on publicly available information about Vance’s past record and statements, with some — such as his past criticisms of Trump — identified in the document as “POTENTIAL VULNERABILITIES.” The person also sent part of a research document about Florida Sen. Marco Rubio, who was also a finalist for the vice presidential nomination.

Note, this mirrors one of the first things Guccifer 2.0 released in 2016: Hillary’s oppo dossier on Trump. So in addition to its use of an AOL account, this persona is adopting another of the Russian persona’s tactics.

Again, I’m cool with outlets sitting on the dossier itself. But the content of it is newsworthy. That’s because after JD Vance’s rocky rollout, both donors and Trump himself are asking whether vetters were surprised by Vance’s misogynist public statements.

Over the past two weeks, Mr. Trump has fielded complaints from donors about his running mate, JD Vance, as news coverage exploring Mr. Vance’s past statements unearthed — and then exhaustively critiqued — remarks including a lament that America was run by “childless cat ladies.”

Mr. Trump dismissed out of hand donors’ suggestions that he replace Mr. Vance on the ticket. But Mr. Trump privately asked his advisers whether they had known about Mr. Vance’s comments about childless women before Mr. Trump chose him.

I’d also like to know if Trump’s vetting team knew of the pictures of JD wearing drag while at Yale, which have become the subject of memes on social media.

Whether the dossier was comprehensive matters (particularly given that a law firm also involved in Trump’s criminal defense completed it). It matters, most of all, because Trump has swapped the mediocre Ivanka as his primary familial advisor for the incompetent Don Jr, and the failson had a key role in picking JD.

So it would be newsworthy to reveal the scope and the thoroughness (or not) of the vetting document.

That said, I think every outlet that is sitting on these documents, particularly if they’re withholding details about any oversights in JD’s vetting document, owes the public an explanation of why they’re adopting a double standard as compared to their poor choices from 2016.

WaPo, which is trying to hunker through controversy about Will Lewis’ possible role in covering up Murdoch’s phone hacking,  tried to do that yesterday. Matt Murray boasted that outlets were taking a breath, and then went on to claim that the vetting document isn’t newsworthy because the six-month old vetting document isn’t, “fresh or new enough.”

“This episode probably reflects that news organizations aren’t going to snap at any hack that comes in and is marked as ‘exclusive’ or ‘inside dope’ and publish it for the sake of publishing,” said Matt Murray, executive editor of The Post. Instead, “all of the news organizations in this case took a deep breath and paused, and thought about who was likely to be leaking the documents, what the motives of the hacker might have been, and whether this was truly newsworthy or not.”

[snip]

“In the end, it didn’t seem fresh or new enough,” Murray said.

WaPo even attempted to address something virtually all discussions about using rat-fucked documents in the context of the suspected Iranian hack do not: the treatment of the Hunter Biden laptop, the most innocent provenance explanation for which is that, after pursuing a laptop from foreigners with ties to Russian intelligence for a year, Rudy Giuliani received just such a laptop out of the blue from a blind computer repairman.

Here’s what WaPo claims about how reserved news organizations were with the hard drives described as the Hunter Biden laptop.

News organizations have been tested since 2016. Wary of (1) hacked materials since then, many proved reluctant to report on the contents of Hunter Biden’s laptop out of concerns that they were the result of a hack. As the conservative press latched on to (2) allegedly incriminating emails found on the computer in the final weeks of the 2020 campaign, more mainstream outlets did not join in a 2016-style frenzy over the material, and Facebook and Twitter limited distribution of a New York Post story about the laptop.

An analysis by The Post nearly two years later confirmed the authenticity of many of the emails on the laptop and found no evidence of a hack. [my annotation]

Note the two reasons alluded to in this passage, both of which show up in Murray’s claimed explanation for sitting on the JD Vance dossier. There were two concerns, according to the WaPo:

  1. Was the laptop “hacked”?
  2. Did the “allegedly incriminating emails” prove what the NYPost claimed they did?

Then, in the next paragraph, WaPo addresses just one of those two issues, whether the hard drive copied from a copy of a laptop, was hacked. WaPo claims, falsely, that the linked story describing the results of Jake Williams and Matt Green’s analysis “found no evidence of a hack.”

For starters, that’s a category error. This is a copy of a copy of a laptop, not the laptop itself. What their analysis attempted to assess was the authenticity of the emails on the laptop — but two different security researchers were only able to do so for a fraction of the emails. This analysis made no attempt to assess whether the stuff on the laptop was packaged up from authentic files (or from a combination of authentic and doctored files). Far more importantly, given details of Hunter’s cloud accounts, it did not assess whether people besides Hunter Biden had access his cloud data (evidence at his gun case described that not just his mistress, Zoe Kestan, accessed his cloud data, but his drug dealers accessed at least his bank account).

But it did find that the copy of a copy of a laptop lacked marks of reliability and did include files placed there by someone other than Hunter Biden.

Most of the data obtained by The Post lacks cryptographic features that would help experts make a reliable determination of authenticity, especially in a case where the original computer and its hard drive are not available for forensic examination. Other factors, such as emails that were only partially downloaded, also stymied the security experts’ efforts to verify content.

[snip]

In their examinations, Green and Williams found evidence that people other than Hunter Biden had accessed the drive and written files to it, both before and after the initial stories in the New York Post and long after the laptop itself had been turned over to the FBI.

[snip]

“From a forensics standpoint, it’s a disaster,” Williams said. (The Post is paying Williams for the professional services he provided. Green declined payment.)

[snip]

Neither expert reported finding evidence that individual emails or other files had been manipulated by hackers, but neither was able to rule out that possibility.

[snip]

Analysis was made significantly more difficult, both experts said, because the data had been handled repeatedly in a manner that deleted logs and other files that forensic experts use to establish a file’s authenticity.

“No evidence of tampering was discovered, but as noted throughout, several key pieces of evidence useful in discovering tampering were not available,” Williams’ reports concluded.

There are several details, disclosed subsequent to the story, that it lacks: It doesn’t talk about the ways the story John Paul Mac Isaac’s attorney told WaPo conflict with the story JPMI would tell in his book (one very significant conflict pertains to the date when JPMI reached out to the FBI). It doesn’t describe that JPMI himself disavowed some of the content on the Jack Maxey hard drive, the one shared with the WaPo. It doesn’t describe that Hunter has sued Garrett Ziegler and Rudy Giuliani for hacking him (the former survived Ziegler’s motion to dismiss; the latter was dismissed pending the end of Rudy’s bankruptcy; as far as I know, Hunter has not yet renewed the suit against Rudy given the imminent dismissal of Rudy’s bankruptcy). It doesn’t describe that in court filings, Abbe Lowell affirmatively claimed that the data on the laptop itself — not the copy! — had been compromised before being shared with the FBI.

Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac obtaining it.

WaPo relies on a two year old story that has been significantly preempted to claim that the copy of the copy of the laptop was not hacked. The story never made such a claim, and the claims it has made have been undermined since.

But there’s an even more telling aspect of WaPo’s self-satisfied claim that reporters gave up their rabid addiction for rat-fuckery after 2016. It doesn’t address whether the laptop subsequently became newsworthy.

There’s good reason for that: Because after the election, WaPo did embrace the laptop, even the doctored one they got from Maxey, as part of a years-long campaign of dick pic sniffing. Their lead dick pic sniffers, Matt Viser and Devlin Barrett, even made shit up when disgruntled IRS agents released details that raised questions about the integrity of the original copy. Since then, prosecutors themselves have described that the extraction of the copy of the laptop they received — the one whence all the data that sloppy reporters call “the laptop” came — is 62% bigger, measured in terms of pages, than the laptop itself. There are potentially innocent explanations for why the hard drive purporting to be a copy of the laptop would not match it, but those explanations would conflict with JPMI’s explanations for how he made the copy. And, scandalously, the FBI never made an index of the laptop, and Judge Maryellen Noreika allowed it to be used in the trial against Hunter without ever even assuring that the forensic reports on the extraction of the two devices matched what got certified to her in a court filing.

And WaPo is not alone in its continuing addiction to relying on a copy of a copy of a laptop with such provenance problems. Just yesterday, NYT’s Ken Vogel did a story that relied on the laptop which basically said, Hunter Biden asked the Commerce Department for help on Burisma but it blew him off (unsurprisingly, Vogel also struggles with the court filings on which he bases his news hook). Four years after Vogel’s chum Rudy Giuliani released the laptop, three weeks after Joe Biden dropped out, NYT is still reporting the absence of news in an 8-year old email as news, precisely the kind of attention suck that rat-fuckers seek when they provide stolen documents to people like Vogel.

Again, in my opinion, WaPo is right not to publish the JD Vance dossier, though that’s different than using it to assess whether there were big gaps in the vetting of Trump’s unpopular running mate.

But WaPo is telling fairy tales about whether mainstream outlets gave up their fondness for rat-fuckery.

They did not. For four years, they have been utterly addicted to the rat-fuckery of the laptop, to the exclusion of reporting on all the details that should raise cautions disclosed since then.

And as such, the decision not to embrace this rat-fuckery, however correct it might be, is a double standard.

Derek Hines’ Romanian Freeh Fall

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There have been a bunch of developments in Hunter Biden’s Los Angeles case that I hope to catch up to:

  • Prosecutors’ games with coercing testimony from Hunter’s family members, again
  • The status of both Hunter’s and Alexander Smirnov’s efforts (Smirnov’s is before a different judge) to replicate Trump’s challenge to Special Counsel authority
  • The apparent strategy prosecutors will use to prove their case — including an effort to limit how much Hunter can talk about the addiction they spent a week proving in Delaware

But I want to talk about the curious conflict that prosecutors’ may create effort to use Hunter’s work for Romanian businessperson Gabriel Popoviciu to smear Hunter in the guise of proving his acuity. Both parties are renewing the motions in limine they submitted in May before the trial got moved, and on July 31, Hunter submitted a motion to exclude any allegations of (my word) influence peddling — basically, the arguments the House has been focused on.

Defendant Robert Hunter Biden, by and through his counsel of record, herebyfiles this Motion in Limine to exclude from trial reference to any allegationthatMr.Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion, (2) violated FARA, (3) improperly coordinated with the Obama Administration, (4) received direct compensation from any foreign state, (5)receivedcompensation for actions taken by his father that impacted national or international politics, or (6) funneled money to his father or any related alleged corruption(together, allegations of “improper political influence and/or corruption”).

Hunter argued that since he had never been charged for any such crime, it should not come in at the trial.

Mr. Biden is not,and never has been, charged with any crime relating to these unfounded allegations, and the Special Counsel should thus be precluded from even raising such issues at trial.

Hunter even renewed his complaint that prosecutors wanted to present such evidence even though he had agreed not to raise how they had chased Alexander Smirnov’s hoax against Hunter and his father.

Defense counsel notes that it is ironic that the Special Counsel has filed a motion in limine to exclude evidence “alleging the prosecution of the defendant is somehow due to or part of a Russian malign election influence campaign,”whichMr.Biden did not object to. (DE 92 at 4.) Yet, the Special Counsel opposes the instant motion, which would preclude him from putting forward similar politically charged information to the jury. To prevent this trial from becoming a trial on politics rather than a trial on the charges in the Indictment, this Court should grant both the Special Counsel’s motion as it relates to a “Russian malign election influence campaign”and this Motion.

In David Weiss’ response (importantly, signed by Derek Hines), he scolds Hunter for not offering up what was provided in Jencks production in May, and uses that to submit a filing from Rob Walker’s grand jury testimony under seal, as if that was Hunter’s job to do.

In addition to providing evidence prosecutors allege will show that Hunter “performed almost no work in exchange for the millions of dollars he received from” Burisma and CEFC, prosecutors want to show the work that Hunter did do for Romanian businessman Gabriel Popoviciu. They claim it’ll not only show what income Hunter made in 2017 — something that can easily be shown with bank statements — but also show that Hunter retained his full capacities in a year he didn’t pay taxes (albeit a year when Hunter allegedly simply forgot to pay his prior year’s taxes).

For Count 2, the government must prove that the defendant owed taxes on his income for the calendar year ending December 31, 2017. See Dkt. 159-1, Gov’t Proposed Instruction No. 34 (Failure to Pay). The purpose and structure of the payments and the nature of the work described above are relevant because they establish that the defendant received income when payments were made by Business Associate 1 and the year in which the defendant earned the income. See United States v. Hoegel, 723 F. App’x 421, 424 (9th Cir. 2018) (unreported). Moreover, the evidence of what the defendant agreed to do and did do for G.P. demonstrates the defendant’s state of mind and intent during the relevant tax years charged in the indictment. It is also evidence that the defendant’s actions do not reflect someone with a diminished capacity, given that he agreed to attempt to influence U.S. public policy and receive millions of dollars pursuant to an oral agreement with Business Associate 1 in an arrangement that concealed the true nature of the work he was performing for G.P. See id. at Gov’t Proposed Instruction No. 29.1 (“Diminished Capacity”).

Amid a bunch of other fairly reasonable or routine motions, this one is an outlier. Particularly given how Hunter’s non-payment of 2016 taxes was charged as a crime that occurred in 2020 (meaning, Hunter’s acuity in 2017 is not directly tied to the crimes alleged), it feels very equivalent to John Durham’s corrupt efforts to insinuate a conspiracy by making allegations he couldn’t prove in court filings. The inclusion of all this is a stretch (though Mark Scarsi has been overly solicitous of the government’s requests, and I have no expectation that’ll change).

For all three relationships, Weiss can simply prove Hunter made the money by pointing to bank accounts. Including anything more is prejudicial, wildly prejudicial in a trial scheduled during campaign season.

Hines’ stunt of providing the Rob Walker transcript seems designed to ensure it gets shared one way or another, and in the process, freed up for inclusion in a final report.

But here’s the reason why Weiss’ focus — Derek Hines’ focus — is so curious. Prosecutors seem prepped to argue that Hunter himself peddled influence for Popoviciu — but as [!!!] Fox News explained two years ago, Hunter didn’t do the work. Other lawyers at Boies Schiller did … including, especially, Louis Freeh.

Hunter Biden and his colleagues at a high-powered law firm tried to leverage their government connections in the final months of the Obama administration in a failed bid to help a Romanian real estate tycoon avoid a conviction on bribery charges.

Emails obtained from Hunter’s abandoned laptop show the younger Biden — then working as a counsel at Boies Schiller Flexner LLP — reached out to former FBI Director Louis Freeh in June 2016 about the case of Gabriel Popoviciu, who was accused of acquiring land to build a Bucharest mall at a below-market price, the Daily Mail reported.

In a June 18, 2016, email, Hunter Biden told Freeh — then a partner at the Delaware-based law firm Freeh, Sporkin & Sullivan — that he believed Popoviciu was “a good man that’s being very badly treated by a suspect Romanian justice system … Time is of the essence and my client has never balked at bringing whatever team it takes together at whatever cost to obtain justice.”

While Freeh’s initial response, which began “Thanks for your note and for thinking of me,” was noncommittal, he was soon fully invested in Popoviciu’s case.

“I will see my good friend Ron Noble (former SecGen INTERPOL), in NY on Thursday,” Freeh wrote Hunter three days after the initial email, “and most likely he knows this DNA [Romanian National Anti-Corruption Directorate] prosecutor, Laura Codruta Kobesi, very well. Let me talk to him and see what the possibilities may be to meet with her and to initiate a dialogue which would remediate the situation.”

This does make it similar to what Hunter did with actual lobbying for Burisma and influence-peddling for Patrick Ho: brokering relationships to have other people do the work.

And (as more anti-Hunter outlets have explained) Derek Hines worked with Freeh for eighteen months leading up to these events.

Hines’s LinkedIn says he worked as ‘Special Counsel’ for the ex-FBI director at his company Freeh Group in New Orleans, Louisiana, between August 2013 and February 2015. It is unclear what projects he counseled Freeh on.

It wasn’t until 2016 that Hunter started working with Freeh consulting for Popoviciu.

Indeed, Hines’ past work with Freeh was the subject of conspiracy theorizing that he was covering for Freeh.

At least as explained, Freeh’s role seems to go to the core of the allegations Hines wants to present in court, allegations that have nothing to do with non-payment of his taxes, allegations that say nothing about Hunter’s acuity in 2020, when he allegedly chose not to pay his 2016 taxes.

Yet Hines appears to have had a closer relationship to Freeh than Hunter did.