January 6 Insurrection Archives

The Opportunity Costs of Conspiracy Theories about Merrick Garland

December 30, 2024/144 Comments/in 2024 Presidential Election, Hunter Biden, January 6 Insurrection, Leak Investigations /by emptywheel

You have a choice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I could give a flying fuck about Merrick Garland.

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

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

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

And there is a better, more urgent, option.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 21, 2024/67 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, January 6 Insurrection, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

We don’t live in that world.

Trying to budge Republicans from their reassurances would backfire.

Here’s why.

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

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

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

KRISTEN WELKER:

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

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

You won’t ever concede —

PRESIDENT-ELECT DONALD TRUMP:

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

KRISTEN WELKER:

But you’re going to be the president.

PRESIDENT-ELECT DONALD TRUMP:

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

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

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

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

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

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

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

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

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

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

None.

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

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

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

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

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

Gone!

Poof!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A damn good question for a confirmation hearing.

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

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

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

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

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

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

RADDATZ: Would Donald Trump go after his political opponents?

VANCE: No —

RADDATZ: He suggested that in the past.

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

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

(CROSSTALK)

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

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

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

Kamala Harris is explicitly —

RADDATZ: Senator Vance, I —

(CROSSTALK)

VANCE: — censorship of folks who disagree with her.

RADDATZ: I want to go back to Donald Trump.

(CROSSTALK)

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

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

He often went after them in public, too.

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

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

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

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

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

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

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

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

December 18, 2024/9 Comments/in 2024 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

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

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

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

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

Loudermilk’s tribute to Kash Patel’s leadership

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[Discussion off the record.]

Q sure. Go ahead.

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

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

[snip]

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

A don’t recall him ever saying that.

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

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

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

How Barry Loudermilk covers up his own coverup

Which brings us to Loudermilk’s own coverup.

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

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

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

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

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

But Jack Smith released an unredacted fragment of that transcript.

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

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

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

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

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

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

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

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

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

Loudermilk’s sketchy evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If an Informant Narcs on a Riot But No FBI Agent Asks about It, Did It Really Happen?

December 12, 2024/13 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Way at the back of the DOJ IG Report on January 6 showing that there were roughly 26 informants present at the attack, only three of whom had been tasked with telling their handlers what was going down, is the FBI response.

Here’s the signature block.

These are normally signed. For example, the report on subpoenas to Congress and journalists was signed by Brad Weinsheimer, the top career official at DOJ.

But on the day Chris Wray announced his upcoming departure, no one at FBI wanted to take responsibility for their response.

The response disputes a key finding of the Report: DOJ IG concludes (after a close review of emails that went out) that no one bothered to ask field offices if their informants knew anything about the event.

[T]he FBI did not take a step that could have helped the FBI and its law enforcement partners with their preparations in advance of January 6. Specifically, the FBI did not canvass its field offices in advance of January 6, 2021, to identify any intelligence, including CHS reporting, about potential threats to the January 6 Electoral Certification. Several FBI officials told the OIG that it is common practice for the FBI to ask field offices to canvass their sources for information—in advance of a large event, such as the Inauguration, the Super Bowl, or other events with significant attendance and to report that information to the requesting field office, which, in this instance, would have been the WFO. FBI Deputy Director Paul Abbate, who was Associate Deputy Director at the time, described the lack of a canvass prior to January 6 as a “basic step that was missed,”

The FBI, however, says,

[T]he FBI continues to disagree with certain of the factual assertions in the Report regarding the manner of specific steps, and the scope of the canvas undertaken by the FBI in advance of January 6, 2021, a time period during which the Report recognizes as including multiple field offices providing information in response to direction from Washington Field Office and FBI Headquarters.

Among the things that an FBI informant knew but — not having been asked by his or her handler — did not report until after the riot? That the informant reported on the meeting between Stewart Rhodes and Enrique Tarrio in a parking garage.

During the course of the FBI’s January 6 investigation, the FBI learned that on the night of January 5 the CHS was in contact with Tarrio and reported on a meeting with Tarrio and Rhodes, which became a subject matter of the Tarrio prosecution

An earlier report from this informant, claiming 100 Proud Boys would make the trip and they were beginning to get cranky, did get filed in DC on January 4. But not the detail that Stewie and Enrique were in cahoots — a meeting that remains unexplained to this day, a piece of intelligence that might have led to a different approach to policing the militias or the Trump associates they had in common, people like Roger Stone and Alex Jones.

The FBI also didn’t share another informant’s tips about Rhodes’ plans to travel to DC for January 6.

On December 15, the Field Office 1 CHS reported to the Field Office 1 Handling Special Agent and the Field Office 1 RA 1 Special Agent that Rhodes intended to travel to DC for the events of January 6. This was the first time the Field Office 4 CHS provided reporting that specifically referenced January 6. According to the FD-1023 documenting this contact, the Field Office 1 CHS reported that Rhodes had been “trying to attract Oath Keepers who are current law enforcement members to travel for events on that day so they can carry concealed firearms legally.” In addition, the FD-1023 stated, “Rhodes has made recent public statements suggesting Oath Keepers and the militia can be called up on [sic] to assist the current president to stay in office and resist perceived deep state enemies.” The Field Office 1 CHS reported that the CHS “[doesn’t know of] specific plans by Rhodes or any of his associates to instigate any acts of violence,” but was “very concerned that extremist members of Oath Keepers or other groups may become involved in unplanned violent activity on January 6.

This information, including that Rhodes was planning to travel to DC for January 6, was recorded in Field Office 1 case files on December 22 but was not emailed or otherwise provided to WFO. The Field Office 1 handling agent told the OIG that the Field Office 1 RA 1 Special Agent, as the assessment’s case agent, took the lead in communicating with WFO and that she may have sat in on conference calls with WFO, but she did not initiate any contact with WFO.

[snip]

The Field Office 1 RA 1 Special Agent told the OIG that even though this source reporting was properly documented and was not “dynamic” information, “this was one where I kick myself every day” for not emailing a copy of the reporting to WFO and DTOS. The Field Office 1 RA 1 Special Agent said that given that Rhodes had been present for the MAGA I and MAGA II election protests and was so visible about his objections to the election results, and given Field Office 1’s many communications with DTOS and WFO about Rhodes, he would have expected DTOS and WFO to be made aware that Rhodes was planning to be in DC on January 6.

We determined that the last reporting from the Field Office 1 CHS before January 6 was on January 4 when the Field Office 1 CHS told the Field Office 1 handling agent that the Oath Keepers “contingent headed to DC is 200+ strong.” The FD-1023 includes the statement that the “CHS did not have anything more detailed to provide.” This reporting also was not provided to WFO or filed in any WFO case file. The Field Office 1 CHS did not travel to DC for the events of January 6.

The report is, nevertheless, unbelievably soft on the FBI, which built and sustained a phone dragnet for fourteen years after 9/11 because the FBI missed one phone call involving Osama bin Laden. Here, FBI’s informants gave it multiple warnings about plans men since convicted of sedition had on January 6. And a number of those warnings weren’t shared.

Instead of hammering the FBI for missing such leads from its informants, the report concluded that the FBI didn’t miss anything “critical” by failing to call on its extensive informant network to find out what they knew.

Although WFO and DTOS did not direct field offices to canvass their CHSs in advance of January 6, our review of documented CHS reporting in FBI field offices as of January 6 did not identify any potentially critical intelligence related to a possible attack on the Capitol on January 6 that had not been provided to law enforcement stakeholders prior to January 6. For example, the FBI had received CHS reporting about online threats to the Electoral Certification that included maps of the Congressional tunnels. WFO distributed this intelligence through the established January 6 coordination mechanisms. Moreover, we found that the USCP, the MPD, the USPP, DHS, and the Supreme Court Police all learned about similar intelligence in advance of January 6 through their own intelligence gathering mechanisms and other established coordination efforts. 95 Additionally, our review of information in the FBI’s possession as of January 6, in addition to the then-documented CHS reporting, did not identify any potentially critical intelligence that had not been provided to, or was not otherwise known to, law enforcement stakeholders prior to January 6. We also took note of the fact that the extensive previous oversight (by Congress, the GAO, and other Inspectors General) of the events of January 6, including preparation by law enforcement in advance of January 6, did not identify potentially critical intelligence that was not shared by the FBI in advance of January 6. [my emphasis]

This applies a wildly different standard for white seditionists than it did, for decades, for Muslim men.

And yet, having been treated with an incredibly lax standard, the FBI still refuses to own up to their January 6 failures.

The Zombie Case against Trump’s Indicted Co-Conspirators

November 26, 2024/25 Comments/in 2024 Presidential Election, Hunter Biden, January 6 Insurrection /by emptywheel

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.

“Without Prejudice:” Jack Smith Moves to Dismiss the DC Case

November 25, 2024/96 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Jack Smith has moved to dismiss the DC case against Donald Trump. OLC has found that the categorical prohibition on the federal indictment of a sitting President means DOJ cannot sustain the indictment against Trump.

OLC concluded that its 2000 Opinion’s “categorical” prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office. 2000 OLC Opinion at 254.1 Accordingly, the Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice. Cf. id. at 255 (“immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment”). This outcome is not based on the merits or strength of the case against the defendant

But OLC does not require dismissing the indictment with prejudice.

That means if Congress were to decide to impeach Trump on these issues, he could again be charged (through January 6, 2026).

Though it’s not yet clear whether Smith will dismiss the appeal against Walt Nauta and Carlos De Oliveira in Florida, this clears the way for Smith to file a report on what he found.

Update: In the 11th Circuit, Smith has moved to dismiss the appeal without prejudice against Trump but not his two co-defendants.

Update: Judge Chutkan grants Jack Smith’s request. How is notable: she focuses on defending the decision to dismiss without prejudice.

Federal Rule of Criminal Procedure 48(a) provides that before trial, the Government “may, with leave of court, dismiss an indictment.” The “‘principal object of the “leave of court” requirement’ has been understood to be a narrow one—‘to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.’” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)).1 Here, Defendant consents to the dismissal, Motion at 1, and there is no indication that the dismissal is “part of a scheme of ‘prosecutorial harassment’” or otherwise improper, Fokker Servs. B.V., 818 F.3d at 742 (quoting Rinaldi, 434 U.S. at 29 n.15). Rather, the Government explains that it seeks dismissal pursuant to Department of Justice policy and precedent. Motion at 2–6. The court will therefore grant the Government leave to dismiss this case.

Dismissal without prejudice is appropriate here. When a prosecutor moves to dismiss an indictment without prejudice, “there is a strong presumption in favor” of that course. United States v. Florian, 765 F. Supp. 2d 32, 34 (D.D.C. 2011). A court may override the presumption only when dismissal without prejudice “would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.” Id. at 35 (quoting United States v. Poindexter, 719 F. Supp. 6, 10 (D.D.C. 1989)). As already noted, there is no indication of prosecutorial harassment or other impropriety underlying the Motion, and therefore no basis for overriding the presumption—and Defendant does not ask the court to do so. See Motion at 1. Dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office. Id. at 6 (citing Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 225 (Oct. 16, 2000)).

Some courts in this district have advanced a broader view of the “leave of court” requirement. For instance, one concluded that “a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not ‘satisfied that the reasons advanced for the proposed dismissal are substantial’; or (2) she finds that the prosecutor has otherwise ‘abused his discretion.’” United States v. Flynn, 507 F. Supp. 3d 116, 130 (D.D.C. 2020) (quoting United States v. Ammidown, 497 F.2d 615, 620–22 (D.C. Cir. 1973)). Even under that broader interpretation, however, the court finds no reason to deny leave here.

WaPo Enthusiastically Joins Trump’s Attack on Rule of Law

November 23, 2024/42 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

One reason why Trump managed to win the election in spite of his four felony prosecutions is because self-imagined journalists never fact-checked him when he falsely claimed his prosecutions — all of them — were partisan witch hunts.

This article, from WaPo, is a remarkable example.

It confirms what was already clear — that Trump will attempt to fire everyone who worked on his own criminal prosecutions — and adds that Trump also intends to use DOJ to investigate his claims of voter fraud that his own DOJ already debunked in late 2020. It describes this fascist project to politicize DOJ as evidence of his “intention to dramatically shake up the status quo in Washington.”

The post notes that Trump, “lost to Joe Biden but continues to insist [the election] was stolen from him in key battlegrounds,” and describes that, “neither the president-elect nor his allies have ever provided evidence to prove their claims of voter fraud.”

But it doesn’t mention that Bill Barr’s DOJ already did investigate Trump’s claims of election fraud. And although Josh Dawsey is bylined, the story mentions none of Dawsey’s several stories on contractors whom Trump hired in 2020, who looked for — but could not find — any evidence to back these claims (one two three).

More tellingly, WaPo’s four journalists don’t bother to correct Karoline Leavitt’s objectively false claim that, “President Trump won the election in a landslide,” a claim that could be easily debunked by pointing out that Trump won’t break 50% of the popular vote and won by less than 2%.

They just let Leavitt lie.

Worse still, they repeated Trump’s claims of grievance over and over, saying only that it is a frequent claim, not a false one.

[1] a Trump spokeswoman echoed the president-elect’s frequent claim that the Justice Department cases against him were politically motivated.

“President Trump campaigned on firing rogue bureaucrats who have [2] engaged in the illegal weaponization of our American justice system, and the American people can expect he will deliver on that promise,” press secretary Karoline Leavitt said in a statement. “One of the many reasons that President Trump won the election in a landslide is Americans are sick and tired of seeing their tax dollars spent on [3] targeting the Biden-Harris Administration’s political enemies rather than going after [a] real violent criminals in our streets.”

[snip]

And he has [4] maintained from the start that Smith’s investigations into his efforts to reverse his defeat — as well as his alleged mishandling of classified documents after he left the White House — are examples of the weaponization of government against him that must be avenged.

[snip]

“For too long, the partisan Department of Justice [5] has been weaponized against me and other Republicans,” Trump wrote when announcing his new pick, longtime ally Pam Bondi, in a post on Truth Social. “Not anymore. Pam will refocus the DOJ to its intended purpose of fighting Crime, [b] and Making America Safe Again.”

There are plenty of ways people who chose to engage in journalism could debunk these false claims: to point out that Joe Biden was also investigated for retaining classified documents, to describe that a former Trump US Attorney, Robert Hur, found characteristics that distinguished Trump’s case from Biden’s, to explain what those distinctions were — Trump’s year-long effort to hide documents from DOJ. Regarding January 6, a journalist might explain that hundreds of other people were charged with the same main crime — obstructing the vote certification — as Trump was, but in his case the fraudulent certificates made the evidence even stronger.

At the very least, describe — in detail! — what Trump was charged with! WaPo chooses not to do that.

On the claims of politicization, the laziest reporter might note at least that Joe Biden’s own son was prosecuted on two coasts, along with three high profile Democrats — Bob Menendez, Henry Cuellar, and Eric Adams.

Trump’s claim that Biden’s DOJ targeted Republicans is laughable, and yet four self-imagined journalists repeated the claim as if it were true.

Trump’s claims that Biden’s DOJ didn’t prosecute violent criminals in the streets bears special focus, since hundreds of the January 6ers — people Trump has suggested he’ll pardon — are just that: people convicted of violently assaulting cops.

And his claim that Pam Bondi will fight crime as if Merrick Garland did not? For fuck sake, people, mention that crime rates came down under Biden.

WaPo packages up all this unrebutted propaganda as a process story. Twelve paragraphs in, it addresses the question of whether Trump will be able to fire career employees. In ¶15, it describes the make-up of Jack Smith’s team.

But it’s all buried under dumb repetition of Trump’s attack on rule of law, as if the attack were true. WaPo just couldn’t be bothered to conduct the least little act of journalism on that point, and so simply repeated Trump’s false claims of grievance with no correction.

And as such, the article itself becomes part of precisely the outrageous abuse it describes: the creation of a false myth of grievance by burying (literally in Trump’s case and figuratively in the case of four people calling themselves journalists) the reality about rule of law.

Special Counsel Reports Include Declination Decisions

November 18, 2024/48 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

In this appearance on BradCast last week, I scoffed a bit at this Devlin Barrett/Glenn Thrush piece. The headline news — that Jack Smith will step down before Trump comes in — was fairly obvious from Smith’s request for three weeks to figure out what to do. The focus on Smith’s obligatory report is something I made clear a week earlier. To be sure, the piece relies on interviews to confirm that Smith (and his staff) will resign, that only outside decisions could thwart their effort to finish up, that Smith has encouraged those who don’t have to stick around to move on.

It’s this section, which aside from the assertion that most of the classification vetting has already been done, is not attributed to the anonymous sources for the story (but which could rely on background sources), that I find odd.

Justice Department regulations require a special counsel’s report to explain why the prosecutor decided to file the charges they did, and why they decided not to file any other charges they considered.

But like much of Mr. Smith’s work involving Mr. Trump, this step is fraught with both technical and practical challenges that could make the report significantly different — and shorter — from the lengthy tomes produced by other recent special counsels. It also unlikely to contain much in the way of new or revelatory disclosures.

Mr. Smith, who has been the subject of round-the-clock protection after receiving death threats since taking over, has already described much of the evidence and legal theories behind the election obstruction indictment. Since he filed two separate and lengthy indictments last year against Mr. Trump, he has supplemented that record with scores of court filings elaborating on the allegations.

One potential wrinkle for the filing and release of Mr. Smith’s report is that it may have to undergo a careful review by U.S. intelligence agencies for any classified information. That can be a lengthy process. Intelligence agencies took weeks to review Mr. Hur’s report.

But in the case of Mr. Smith’s final report, most of that vetting has already been done, so officials expect that step to take little time.

It correctly describes that Special Counsel regulations require them to report on why they filed particular charges … but also why they didn’t file other charges, their declination decisions, but then suggests we’ve already seen what there is to see.

Jack Smith’s declination decisions are one place where a report might get interesting. Just as one example, the search warrant for Mar-a-Lago listed three suspected crimes: 18 USC 793(e) (retaining national defense information) and 18 USC 1519 (concealing a document to obstruct an investigation), both of which were charged. But it also listed 18 USC 2071 (removal of documents). That crime was not charged, even though the indictment describes that Trump personally oversaw the process of packing up boxes (that a witness described Trump knew) containing classified documents to send to Mar-a-Lago.

In January 2021, as he was preparing to leave the White House, TRUMP and his White House staff, including NAUTA, packed items, including some of TRUMP’s boxes. TRUMP was personally involved in this process. TRUMP caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.

Since the warrant was made public, there has been a pretty heated discussion about 2071, not least because Republicans claimed that Smith had considered charging it, which carries a light three year maximum sentence but also disqualifies someone from holding office again, as a way to disqualify Trump from running for President.

There are at least two obvious explanations for why Smith didn’t charge 2071. Perhaps it would be impossible to charge a President under 2071, given that until noon on January 20, 2021, he had authority to do whatever he wanted with those classified documents, sending them off while he was still President. Or perhaps Smith thought he could have charged it, but first needed the testimony of one of the key people involved in the packing process: Walt Nauta.

The reasons behind that prosecutorial decision not to charge Trump for intentionally taking classified documents with him are interesting for another reason. Among the classified documents discovered at Mar-a-Lago that weren’t charged is a “compilation” that mixed communications with “a book author, a religious leader, and a pollster” with some kind of classified information.

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

These documents are nowhere near as sensitive as the ones actually charged against Trump; prosecutors probably prioritized documents that it would be easy to convince a jury they were “national defense information” for the indictment, an explanation that also may appear in the report. But the compilation of classified information with a pollster’s message also suggest that Trump not only took classified documents home, but he used them as part of his campaign to get elected again (it would be particularly interesting if this document pertained to something like Israel).

And note NYT’s description that “most of that vetting has already been done”? In discovery communications, prosecutors have described that some of the classified documents found at Mar-a-Lago have since been declassified; for others, prosecutors would have been working on substitutions they might use in case of trial. So for less sensitive documents, prosecutors may be able to describe precisely what Trump took.

Another classified document, classified Secret, found at Mar-a-Lago but not charged is the very first classified document the FBI found, something pertaining to Emmanuel Macron and associated, in some way, with an Executive Grant of Clemency for Roger Stone stashed (unlike all the other pardon packages found in the search) in Trump’s own desk drawer. I’ll admit that, given my understanding of the Stone investigation, I’m particularly interested in this file, but here’s to hoping that prosecutors will satisfy my curiosity about the document.

There are similarly important declination decisions on the January 6 side of the investigation.

The most obvious of those is why Jack Smith never indicted any of the eight people variously treated as co-conspirators: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark (who was removed in the superseding indictment pursuant to SCOTUS’ immunity ruling), Ken Chesebro, Boris Ephsteyn, and — treated as co-conspirators in the immunity brief but not the superseding indictment — Steve Bannon and Mike Roman. It might be as simple as a decision, given the course of the Mueller investigation, to ensure that Trump couldn’t pardon these co-conspirators before charging any of them.

But prosecutors might also explain why Bannon and Roman only belatedly got included as co-conspirators. I have speculated that it may have to do with delays in exploiting the phones of Roman and Epshteyn. If that’s true in the case of Ephsteyn, those delays would likely have arisen from post-hoc privilege claims tied to Epshteyn’s claim to be Trump’s lawyer. And if that is true, it would mean Trump’s nominee for Deputy Attorney General, Todd Blanche, was the one who fought for the delay.

In any case, any discussion of Trump’s co-conspirators may prove useful to the extent that state prosecutors are able to sustain their cases against the co-conspirators.

Finally, though, there is perhaps the most important declination decision: the decision — after Congress impeached Trump and the January 6 Committee referred for prosecution — not to charge 18 USC 2383, inciting insurrection, the single charge that (per SCOTUS’ decision in the Colorado case) could have disqualified Trump from the Presidency under the Fourteenth Amendment. The reasoning here might be fairly prosaic: Perhaps Smith feared precisely the immunity challenge, tied to impeachment acquittal, that Trump launched anyway. Perhaps Smith was not able to substantiate that case until he received evidence and testimony that post-dated the delay John Roberts caused, and so could charge insurrection now, but could not have done so in August 2023, when he first indicted Trump.

If Smith were to explain why he declined that charge, however, he would — as Robert Hur did in his 388-declination report — describe the evidence that would have supported such a charge.

NYT suggests Smith’s report will be short; again, it’s not clear whether that reflects information received on background, or just speculation. Smith has had an eternity to consider the possibility Trump would be elected, and he managed to write up the 165-page immunity brief in the same three weeks he gave himself in asking for an extension until December 2.

Even assuming we’ve already seen the evidence Smith has — Smith’s decision to exclude mention of the Proud Boys and Trump’s January 6 fundraising from the immunity brief suggests there may be stuff we have not seen — the declination decisions, themselves, may provide important answers to questions about whether it ever was possible to disqualify Trump from becoming president again.

And it’s a marker in the sand. The report presumably will, at least, lay out some of the consequences of what John Roberts has wreaked. Republicans won’t care. But that lays out what they own going forward.

Boris Epshteyn’s One-Two Punch on DOJ

November 15, 2024/103 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

Politico had a detail about the Matt Gaetz selection that I’ve seen no one else pick up.

It was Boris Epshteyn’s idea.

How did we get here? That story is still coming out, but here’s what we know. As of Monday, Gaetz was not on the short list to be Trump’s choice for attorney general. But Trump wasn’t satisfied with those options, our Meridith McGraw tells Playbook.

[snip]

The Gaetz-for-AG plan came together yesterday, just hours before it was announced, Meridith tells us. It was hatched aboard Trump’s airplane en route to Washington, on which Gaetz was a passenger. A Trump official revealed more details to Playbook late last night: BORIS EPSHTEYN played a central role in the development, lobbying Trump to choose Gaetz while incoming White House chief of staff SUSIE WILES was in a different, adjacent room on the plane, apparently unaware.

Maggie and Swan have retconned that detail to describe, only, that Boris, Elon, and Susie Wiles were all on the plane, then fluffed it all into bullshit about clarity of what he wants.

Boris’ role in Trump’s apparent plan to destroy the country has gotten little notice amid the parlor games focused on when the two narcissists, Elon and Trump, will tear each other down. But his apparent role in this decision bears more notice.

After all, he’s unindicted co-conspirator 6 in the January 6 indictment. He had a central (though uncharged) role in the documents case, orchestrating parts of the plan to have Evan Corcoran do the search but have Christina Bobb do the certification. And he was or may still be under investigation, with Steve Bannon, for a cryptocurrency scheme that cheated Trump’s rubes.

His communications with now Chief of Staff designate Susie Wiles appear to have been a subject of interest for investigators — a subject tied to what a witness that is likely Eric Herschmann described as an effort to cover his own past legal exposure with a retroactive claim to have been acting as an attorney.

And the potentially belated access to the contents of his phone are what expanded the focus of the immunity brief to incorporate Bannon as an unindicted co-conspirator and Bannon’s prediction that “All Hell will break loose” part of the plot.

Donald Trump was considering actual lawyers for the role of Attorney General, but (per Marc Caputo) didn’t like them because they talked Constitution and all that.

“Everyone else looked at AG as if they were applying for a judicial appointment. They talked about their vaunted legal theories and constitutional bullshit. Gaetz was the only one who said, ‘Yeah, I’ll go over there and start cuttin’ fuckin’ heads.’”

And then, at least according to Politico, Wiles left the room and Boris convinced Trump to pick Gaetz.

After that, Trump has announced plans to install his defense team — Todd Blanche, Emil Bove, and John Sauer — as Deputy Attorney General, PADAG, and Solicitor General, respectively (note: PADAG is not a confirmed position, so Trump only announced it to make the intent crystal clear).

Now, Bove and Sauer are at least competent to the positions Trump will install them in. All three men know their way around DOJ. Blanche is less horrible than the Gaetz pick — again, if you ignore the symbolism of converting the Department of Justice into the defense firm for the President.

And he’s also Boris’ defense attorney. He was Boris’ defense attorney and then, possibly at Boris’ suggestion, added Trump as a client, creating some challenges regarding discovery.

According to Politico, a key player in Trump’s assault on the Constitution, on the Capitol, is the guy who picked Matt Gaetz to be Attorney General (or who suggested Matt Gaetz be proposed for Attorney General, creating an impossible loyalty test for the Senate).

And the competent people reporting to Gaetz are there to mount a defense.

How Garland-Whinger Ankush Khardori’s Willful Impotence Helps Trump Evade Accountability

November 11, 2024/80 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

There’s a telling quote from Greg Sargent in his description of Kamala Harris’ difficulties in convincing voters that Trump was a bad president.

Some Democrats believe that the leading pro-Harris Super PAC, Future Forward, failed to spend enough of its enormous budget on advertising early on that might have reminded voters of the horrors of the Trump presidency. That perhaps allowed him to slowly rehabilitate himself and edge up his favorable numbers while Democrats weren’t looking.

“There was a calculation among Democrats after 2020 that Trump was disqualified and wouldn’t be back,” Democratic data analyst Tom Bonier told me. “That evolved into a calculation that he would be disqualified by his legal troubles and could end up in jail. Democrats undeniably failed to disqualify him. The result was that by the time the Harris campaign started, it was too late.”

“Was disqualified … would be disqualified … failed to disqualify.”

Bonier is just one person. But the passivity he describes on the part of Democrats expecting and hoping that some magic unicorn would just make the problem of Donald Trump go away is telling. As described, Democrats as a party apparently abdicated all agency for making that case themselves until it was far too late.

It is precisely the reason I’m so impatient with the Merrick Garland whinger industry, which has flourished again since Trump’s win: because they replicate precisely the impotence that got us here. They always asked that Garland do the work, singlehandedly, of making Trump go away, without considering the political groundwork that was necessary to any successful legal case.

Take Ankush Khardori’s description of Trump’s legal impunity. After laying out that, with his election, Trump’s legal troubles will now go away, with which I mostly agree, Khardori then lays out his three culprits: Merrick Garland, Mitch McConnell, SCOTUS.

His culprits are not in temporal order; if McConnell — who had an immediate way to disqualify Trump from further office — had engaged in an impeachment effort, DOJ would have had more time to prosecute.

They’re not in order of culpability. He addresses SCOTUS’ actions in four paragraphs close to the end of his rant. He ignores how their interventions on the Colorado case and Fischer also affected DOJ’s options, and never mentions precisely how long they stalled the case: eight months, with a guarantee of more on the back end. Once you address SCOTUS’ delays and rewriting of the Constitution, it’s not clear a case could ever have been brought before an election, even ignoring how COVID stalled everything for a year, to say nothing of bringing an insurrection charge that would be (per the Colorado decision) the only thing that could disqualify Trump from office. If that’s the case, it wouldn’t matter whether Garland or a gun-toting Adam Schiff, as prosecutor, were in charge. SCOTUS’ intervention, assuming it would have been the same whether it happened in 2021 or 2022 or 2023, was decisive. Trump’s judges made a prosecution of him before the election impossible and further ruled that the only thing that could disqualify him was an insurrection charge.

Instead of focusing primarily on the main culprits, Khardori prioritizes what he imagines was Garland’s role over that of McConnell and — astonishingly — SCOTUS.

And as is typical with Garland whingers, his indictment of Garland is riddled with problems (and, as the red typeface I used to mark links to his own past pieces shows, his own bellybutton lint).

It is now clearer than ever that Garland was a highly questionable choice to serve as attorney general from the start. From the outset of the Biden presidency, it was readily apparent that Garland had little desire to investigate and potentially prosecute Trump.

The most comprehensive accounts on the matter, from investigative reporting at The Washington Post and The New York Times, strongly indicate that the Jan. 6 committee’s investigation and public hearings in 2022 effectively forced Garland to investigate Trump and eventually to appoint Smith in November of that year — nearly two years after Trump incited the riot at the Capitol.

There are many people — including many Democratic legal pundits — who have continued to defend this delay and may continue to do so, so let me be very clear: Those people are wrong.

It was clear after Trump’s loss in 2020 — even before Jan. 6 — that his conduct warranted serious legal scrutiny by the Justice Department, particularly in the area of potential financial crimes. But that probe, which could and should have been pursued by Biden’s U.S. Attorney and aspiring attorney general in Manhattan, somehow never materialized.

It was also clear — on Jan. 6 itself — that Trump may have committed criminal misconduct after his loss in 2020 that required immediate and serious attention from the Justice Department.

The formation of the Jan. 6 committee in early 2021 did nothing to change the calculus. There too, it was clear from the start that there would still need to be a criminal investigation to deliver any meaningful legal accountability for Trump.

In fact, the warning signs for where this could all end up — where the country finds itself now — were clear by late 2021, less than a year into Biden’s term. The public reporting at the time indicated (correctly, we now know) that there was no real Justice Department investigation into Trump and his inner circle at that point, even though the outlines of a criminal case against Trump — including some of the charges themselves that were eventually brought nearly two years later — were already apparent.

As a result, the Biden administration and the Garland Justice Department were running an extremely obvious risk — namely, that Trump would run for reelection and win, and that any meaningful criminal accountability for his misconduct after 2020 would literally become impossible. That, of course, has now happened. It was all eminently predictable.

Garland’s defenders over the years — including many Democratic lawyers who regularly appear on cable news — claimed that Garland and the department were simply following a standard, “bottom-up” investigative effort. Prosecutors would start with the rioters, on this theory, and then eventually get to Trump.

This never made any sense.

It did not reflect some unwritten playbook for criminal investigations. In fact, in criminal cases involving large and potentially overlapping groups of participants — as well as serious time sensitivity — good prosecutors try to get to the top as quickly as possible.

The Justice Department can — and should — have quickly pursued the rioters and Trump in parallel. The fact that many legal pundits actually defended this gross dereliction of duty — and actually argued that this was the appropriate course — continues to amaze me.

As for Garland, his legacy is now out of his control, and the early returns are not looking good.

Garland is a serious, well-intentioned and complex figure. But given all this, he may go down as one of the worst and most broadly unpopular attorney generals in American history — hated by the anti-Trump part of the country for failing to bring Trump to justice, and hated by the pro-Trump part of the country for pursuing Trump at all. I sincerely hope he provides a first-hand accounting of what happened after he too leaves office next year.

The only sources of information on the investigation Khardori cites (aside from his own posts about what he could see without looking) are a WaPo and a NYT article. From both, only Glenn Thrush, a political journalist rehabilitated to the DOJ beat, covered the Trump case closely; none covered the larger investigation.

The WaPo article, which fairly obviously relies heavily on sources from the January 6 Committee members and people who left DOJ when Garland came in, has a number of problems I’ve laid out before (one, two, three).

It missed the significance of Brandon Straka, whose “cooperation” I believe was mishandled, but had it not been, might have gotten you into the Willard in March 2021.
It focused on the Oath Keepers and almost entirely ignores the Proud Boys, and in the process misunderstands the specific role they played, the ways DOJ under Bill Barr had made their prosecution far harder, and their importance to any hypothetical insurrection charge (because they kicked off the insurrection before Trump did, a problem impeachment prosecutors faced).
It ignored the decisions DOJ made with Rudy Giuliani’s phone — which was seized with a warrant obtained on Lisa Monaco’s first day on the job — which made that content, including content J6C never got, available to DOJ starting in November 2021.
It ignored the way DOJ, in August 2021, opportunistically used the prior Deferred Prosecution Agreement of Alex Jones sidekick Owen Shroyer to arrest and exploit the phone of someone who otherwise would likely be protected under media guidelines.
It ignored the overt investigative steps against Sidney Powell taken no later than September 2021.
It ignored a subpoena that was overt in May 2022, which included people who were not immediately a focus of J6C (and so not derivative of that investigation), as well as warrants dating no later than May 2022 targeting (among others) John Eastman. Since then, thanks to Khardori’s colleagues at Politico who do cover these investigations, we’ve learned the exact date that kicked off over ten months of Executive Privilege fights to get the testimony of 14 of Trump’s closest aides: June 15, 2022, one day before J6C interviewed those same witnesses: Marc Short and Greg Jacob. Which is to say, WaPo’s timeline even of known investigative steps is off in a way that suggests DOJ was entirely derivative of J6C, which it could not have been.
Perhaps predictably, given the obvious reliance on J6C sources, it didn’t talk about how their decision to delay sharing transcripts from April until December 2022 withheld information both helpful and crucial from criminal investigators.

More importantly, WaPo focused on Steve D’Antuono’s hesitancy to turn to the fake electors, even as DOJ was pushing to do so. Which is to say that D’Antuono — someone no longer at DOJ — was the key cause for delay, not Garland.

So there are a lot of problems with the WaPo story that Khardori, if he had actually tracked the investigation or followed those of us (including Politico’s own reporters) who do, should have known.

But Khardori didn’t even need to do that to understand that the WaPo had blind spots. That’s because the NYT story describes two prongs of the investigation, started in 2021, that don’t make the WaPo. It describes that,

Garland encouraged investigators to follow the money in his first meeting with them, though that turned out to be largely a dead end (note: Garland publicly implied that investigators were following the money in October 2021).
By summer of 2021, Lisa Monaco convened a team focusing on John Eastman, Boris Epshteyn, Rudy, and Roger Stone.

The NYT story missed a lot of what I included above, too (though not the Proud Boys), but it tells a very different story about efforts to focus on people close to Trump in 2021 than the WaPo did.

In spite of the NYT description of two prongs of the investigation that started in March and summer 2021 that attempted to get directly to those in Trump’s orbit, Khardori spent four paragraphs of his complaint claiming that DOJ had exclusively tried to work their way up from rioters. That’s not what the public record shows, it’s not what NYT says happened, it’s not what public reports on the Powell subpoenas say, it’s not what Garland said in October 2021 testimony. And yet that is the basis Khardori uses to condemn Garland. Further, the NYT describes that, in his first meeting with investigators, Garland, “said he would place no restrictions on their work, even if the ‘evidence leads to Trump,'” That statement is inconsistent with most of Khardori’s first two paragraphs on Garland. The Attorney General told investigators from the start he had no problem investigating Trump. Yet Khardori still links his own past work and claims vindication, rather than confessing that, if the NYT piece he relies on is accurate, he was wrong.

Which is to say, Khardori doesn’t claim to (and shows no signs of) having reviewed how the investigation actually happened. That’s not his job, I guess, as a legal journalist. Instead, he relies on two sources, one of which partly debunks the other, as well as countering his own claim about Garland’s unwillingness to investigate and his four-paragraph argument that Garland should have pursued multiple routes to Trump but did not.

There are facts. And Khardori chooses to ignore them, clinging instead to past assertions that he falsely claims have been vindicated.

It’s the most irresponsible kind of laziness. Without having learned what really happened, Khardori concocts out of his uncertainty and frustration broad judgements that support his priors but are inconsistent with the public record. Via that invented theory to explain the scary unknown, Merrick Garland remains his primary villain, not John Roberts, not Mitch McConnell.

Poof! Thousands of clicks, each time misleading another despondent reader, encouraging helplessness.

Having made Garland his villain, he proclaims defeat.

I am, if anything, more furious than Khardori that Trump will not face legal accountability for his alleged crimes, because I know the kind of insurrectionists whose likely pardons will effectively flip patriotism on its head, valorizing Trump over country. This is a potentially irreparable blow to rule of law in the US.

But I’m not ready, as Khardori seems to be, to concede defeat. That’s because legal accountability is not the only recourse; indeed, we were never going to get legal accountability without first demanding political accountability. That’s the mistake many made: by looking passively at Merrick Garland and begging for a sparkle unicorn to make Trump go away, many failed to take steps, themselves, to hold Republicans to account for abandoning rule of law.

Consider how Khardori disempowers himself elsewhere in his column. Here’s how he describes Jack Smith’s closure of the case.

Already there is reporting suggesting that special counsel Jack Smith will leave his post and dismiss the pending cases, which is not that surprising considering that Trump pledged to fire him once back in office anyway.

He describes this as driven by Trump’s threat to fire Jack Smith, not DOJ regulations that prohibit further prosecution. He doesn’t link or consider any of the reports that lay out the obvious: by stepping down rather than waiting to get fired, Smith obliges himself to write a report. He chooses how he will go out. Admittedly, Khardori published his piece before last week’s filing that suggests we’ll have, at least, clarity by early December which, if it were the actual report, would (among other things) be early enough to hold a hearing.

That’s not going to change Trump’s win. But it provides an opportunity to lay a marker in the sand: This is what Republicans have chosen to enable going forward. This is what Republicans have chosen as a party to become.

It lays a marker for the two other villains in Khardori’s column: McConnell and the other Senate Republicans who refused to convict Trump, and John Roberts and his colleagues who vastly expanded his power without even knowing what Jack Smith had discovered.

Fresh off a big electoral victory, I doubt any will much care. But when the obvious repercussions come — when a guy who stored nuclear documents in a coat closet further compromises US security — the report and the hearing provide a marker that those who failed to stop Trump were warned and chose to do nothing (or worse, on the part of SCOTUS, chose to give him more power).

One of the only remaining possible checks on Trump’s power are the people in the Senate and SCOTUS who failed to check him on these alleged crimes before (though SCOTUS did check some of his other initiatives the first time around). We won’t soon persuade any of them to change their minds. But that doesn’t mean we stop trying — or at least laying a record of their complicity. In that path lies capitulation.

All the more so given that Roberts and his colleagues will be the villains in many more stories that have direct impact on people’s lives going forward.

Donald Trump is about to do a great deal of outrageous things at the start of his term to reverse the treatment of January 6 as a crime. The response cannot be to say, ho hum, if only that awful Merrick Garland would have yelled louder, and give up, especially not when no amount of yelling was going to change what SCOTUS did.

The response is to stop hoping for a sparkle unicorn to do this work for us. The response is to take some agency for making the case about Donald Trump. And a first step in that process is to stop blaming Garland for things — the public record shows — he didn’t do, and especially to stop blaming Garland for things that more important villains, like John Roberts, did do.

The first step to effective accountability is to identify the actual villain.

Update: Ty Cobb, when asked what he thinks about Trump’s promise to pardon the Jan6 defendants, stated, I don’t think anybody in our history has more tarnished the rule of law than Donald Trump.”