When Michael Dreeben Accepted John Sauer’s Invitation to Talk about Speech and Debate

/107 Comments/in , /by

Trump’s appeal of Judge Tanya Chutkan’s immunity opinion is interesting for the personnel involved. The briefs repeat the very same arguments — and in some instances, include the same passages almost verbatim — made less than three months ago. But first Trump brought in John Sauer to argue his appellate cases, then in the last few weeks, former Deputy Solicitor General Michael Dreeben quietly joined the Special Counsel team (importantly, the Solicitor General appointed by Joe Biden has no role in this appeal).

That makes any changes in the arguments of particular interest, because accomplished appellate lawyers saw fit to add them.

Admittedly, two things happened in the interim to change the landscape significantly. In Blassingame, issued hours before Chutkan released her order, DC Circuit Chief Judge Sri Srinivasan laid out how a President running for reelection does not act in his official duty. In Meadows, 11th Circuit Chief Judge William Pryor adopted that analysis in the criminal context with regards to Mark Meadows in the Georgia case.

That provided both sides the opportunity to address what I had argued, on October 21, was a real weakness in Jack Smith’s first response: the relative silence on the extent to which Trump’s actions were not part of his official duties.

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

Citing both Blassingame and Meadows, Smith and Dreeben invited the DC Circuit to rule narrowly if it chose, finding that the crimes alleged in the indictment all pertain to Trump’s role as candidate.

The Court need not address those issues here, however. The indictment alleges a conspiracy to overturn the presidential election results, JA.26, through targeting state officials, id. at 32-44; creating fraudulent slates of electors in seven states, id. at 44-50; leveraging the Department of Justice in the effort to target state officials through deceit and to substitute the fraudulent elector slates supporting his personal candidacy for the legitimate ones, id. at 50-54; attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at 55-62; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at 62-65. The indictment thus alleges conspiracies to advance the defendant’s prospects as a candidate for elective office in concert with private persons as well as government officials, cf. Blassingame, 87 F.4th at 4 (the President’s conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity as a candidate for re-election), and the defendant offers no plausible argument that the federal government function and official proceeding that he is charged with obstructing establish a role—much less an exclusive and conclusive role—for the President, see Georgia v. Meadows, No. 23-12958, 2023 WL 8714992, at *11 (11th Cir. Dec. 18, 2023); United States v. Rhodes, 610 F. Supp. 3d 29, 41 (D.D.C. 2022) (Congress and the Vice President in his role as President of the Senate carry out the “laws governing the transfer of power”) (internal quotation marks omitted).

The short term goal here is to convince Judge Karen Henderson, the Poppy Bush appointee on this panel whose judicial views have grown as radical as any Trump appointee’s, to reject Trump’s claims. Ultimately, Jack Smith is arguing against Presidential immunity even for official acts, but a ruling limited to acts taken as a candidate might provide a way to get Judge Henderson to join the two Biden appointees on the panel, Florence Pan and Michelle Childs, in rejecting Trump’s immunity claims.

In both his briefs, Trump had — ridiculously! — argued that Nixon’s Watergate actions were private acts yet Trump’s January 6 actions were part of his official duties. Smith swatted that claim away in a passage noting that Nixon’s acceptance of a pardon served as precedent for the notion that a President could be tried for actions done as President.

That President Nixon was named as an unindicted coconspirator in a plot to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687, entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that case as involving private conduct. See United States v. Haldeman, 559 F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that the offense conduct included efforts “to get the CIA to interfere with the Watergate investigation being conducted by the FBI” and “to obtain information concerning the investigation from the FBI and the Department of Justice”) (internal quotation marks omitted). And President Nixon’s acceptance of the pardon represents a “confession of guilt.” Burdick v. United States, 236 U.S. 79, 90-91 (1915).

Again, once the categorization adopted by Srinivasan is available, it makes the comparison with Nixon far more damning.

One of the most interesting additions to the earlier arguments, however, is that Sauer added a second kind of immunity to Trump’s earlier discussion that the principles of judicial immunity carry over to Presidential immunity: Speech and Debate. In two cursory paragraphs, Sauer claimed that, like members of Congress, Trump should enjoy both civil and criminal immunity for their official, “legislative” acts.

Legislative immunity. Legislative immunity encompasses the “privilege … to be free from arrest or civil process” for legislative acts, i.e., criminal and civil proceedings alike. Tenney, 341 U.S. at 372. Such immunity enables officials “to execute the functions of their office without fear of prosecutions, civil or criminal.” Id. at 373–74 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).

Thus, legislative immunity “prevent[s]” legislative acts “from being made the basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at 180. A legislative act “may not be made the basis for a civil or criminal judgment against a Member [of Congress] because that conduct is within the sphere of legitimate legislative activity.” Gravel v. United States, 408 U.S. 606, 624 (1972) (emphasis added). Speech and Debate immunity “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Id. at 616.

Did I say two developments have changed the landscape of this discussion? I’m sorry, I should have added a third: In response to the September DC Circuit remand of Scott Perry’s appeal of Judge Beryl Howell’s decision that Jack Smith could have some stuff from his phone — in a panel including Henderson — on December 19, Howell’s successor at Chief Judge, James Boasberg reviewed the contested files anew and ruled that Smith could have most of them, including communications pertaining to “efforts to work with or influence members of the Executive Branch.”

Subcategories (c), (d), (e), and (f) comprise communications about non-legislative efforts to work with or influence members of the Executive Branch. Even if such activities are “in a day’s work for a Member of Congress,” the Speech or Debate Clause “does not protect acts that are not legislative in nature.”

Kyle Cheney (who snagged an accidentally posted filing before it was withdrawn) described what many of those communications would include, including Perry’s advance knowledge of Trump’s efforts to install Jeffrey Clark as Attorney General.

Boasberg’s order required Perry to turn over those communications by December 27; if he appealed that decision, I’m not aware of it. So as you read this Speech and Debate section, consider the likelihood that Jack Smith finally obtained records from a member of Congress DOJ has been seeking for 17 months, since before Smith was appointed.

The DC Circuit opinion in Perry is not mentioned in any of these briefs. But the developments provide an interesting backdrop for Dreeben’s much longer response to Sauer’s half-hearted Speech and Debate bid. Much of it is an originalist argument, noting that whereas Speech and Debate was explicitly included in the Constitution, immunity for Presidents was not, not even in a landscape where Delaware and Virginia had afforded their Executive such immunity.

Along the way, Dreeben includes two citations that weren’t in Jack Smith’s original submission: One from Clarence Thomas making just that originalist argument about Presidential immunity: “the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.” And one from Karen Henderson, the key vote in this panel, noting that, contra Sauer’s expansive immunity claim, “it is well settled that a Member is subject to criminal prosecution and process.”

Unlike the explicit textual immunity granted to legislators under the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, which provides that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place,” the Constitution does not expressly provide such protection for the President or any executive branch officials. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”); JA.604-06. By contrast, state constitutions at the time of the founding in Virginia and Delaware did grant express criminal immunity to the state’s chief executive officer. JA.605 (citing Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). To be sure, the federal Constitution’s “silence . . . on this score is not dispositive,” Nixon, 418 U.S. at 705 n.16, but that silence is telling when placed against the Constitution’s Impeachment Judgment Clause, which presupposes and expressly preserves the availability of criminal prosecution following impeachment and conviction. See U.S. Const. art. I, § 3, cl. 7.

[snip]

The defendant suggests (Br.16-17, 18-19) that common-law principles of legislative immunity embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model for the defendant’s immunity claim.

In contrast to the defendant’s sweeping claim of immunity for all Presidential acts within the outer perimeter of his duties, the Speech or Debate Clause’s scope is specific: it is limited to conduct “within the ‘sphere of legitimate legislative activity.’” Gravel v. United States, 408 U.S. 606, 624 (1972). “Legislative acts are not all-encompassing,” and exclude a vast range of “acts in [a Member’s] official capacity,” such as outreaches to the Executive Branch. Id. Beyond that limitation, the Clause “does not purport to confer a general exemption . . . from liability . . . in criminal cases.” Id. at 626. Nor does it “privilege [Members or aides] to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. Courts have therefore recognized for more than 200 years that a Representative “not acting as a member of the house” is “not entitled to any privileges above his fellow-citizens” but instead “is placed on the same ground, on which his constituents stand.” Coffin v. Coffin, 4 Mass. 1, 28-29 (1808); see Rayburn House Off. Bldg., 497 F.3d at 670 (Henderson, J., concurring in the judgment) (observing that “it is well settled that a Member is subject to criminal prosecution and process”). The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” United States v. Brewster, 408 U.S. 501, 516 (1972). The defendant’s immunity claim, however, would do just that, absent prior impeachment and conviction.

The Speech or Debate Clause’s historical origins likewise reveal its inapplicability in the Presidential context. The Clause arose in response to successive British kings’ use of “the criminal and civil law to suppress and intimidate critical legislators.” United States v. Johnson, 383 U.S. 169, 178 (1966); see United States v. Gillock, 445 U.S. 360, 368-69 (1980) (noting that the English parliamentary privilege arose from “England’s experience with monarchs exerting pressure on members of Parliament” in order “to make them more responsive to their wishes”). In one instance, the King “imprison[ed] members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment,” and the judiciary afforded no relief because “the judges were often lackeys of the Stuart monarchs.” Johnson, 383 U.S. at 181. That history has no parallel here: the defendant can point to no record of abuses of the criminal law against former Presidents, and the Article III judiciary provides a bulwark against any such abuses. [my emphasis]

Having been invited to discuss congressional immunity, Smith’s brief cites another comment from Henderson’s Rayburn concurrence elsewhere. “[T]he laws of this country allow no place or employment as a sanctuary for crime.”

see United States v. Rayburn House Off. Bldg., 497 F.3d 654, 672-73 (D.C. Cir. 2007) (Henderson, J., concurring in the judgment) (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (citing Williamson v. United States, 207 U.S. 425, 439 (1908)). [my emphasis]

Tactically, all this is just an argument — an originalist argument — that even an immunity explicitly defined in the Constitution, Speech and Debate, does not — Judge Karen Henderson observed in 2007, when the question of immunity pertained to Black Democrat William Jefferson, in a case in which she sided with DOJ attorney Michael Dreeben — exempt anyone from criminal prosecution. Read her concurrence! She makes the same arguments about Tudor kings that Smith and Dreeben make!

But much of Jack Smith’s response, in my opinion, lays the ground work for other, future appeals. For example, this brief adopts a slight change in the way it describes the fake elector plot, emphasizing the centrality of Trump, “caus[ing his fake electors] to send false certificates to Congress,” a move that may be a preemptive response to any narrowing of 18 USC 1512(c)(2) that SCOTUS plans in the Fischer appeal of obstruction’s use for January 6.

Ultimately, Smith is still arguing for a broader ruling, rejecting Trump’s presidential immunity claims more generally. Ultimately, I imagine this adoption of language from Clinton v Jones is where Jack Smith would like to end up.

Given that, the Constitution cannot be understood simultaneously (and implicitly) to immunize a former President from criminal prosecution for official acts; rather, the Constitution envisions Presidential accountability in his political capacity through impeachment and in his personal capacity through prosecution. See Clinton, 520 U.S. at 696 (“[F]ar from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.”) (quoting 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson)).

To get there without possibly fatal delays, though, Dreeben and Smith need to get Henderson to agree to at least a narrow rejection of Trump’s immunity claims.

And so, responding to Sauer’s invitation, Dreeben reminded Henderson of what she said about a case he argued 16 years ago.

But if I were Scott Perry, three days after he was ordered to turn over records about his plotting with Donald Trump to overturn the election, I’d be watching these arguments closely.

What Jack Smith Didn’t Say in His Double Jeopardy Response

/63 Comments/in , , /by

Jack Smith just submitted his response to Trump’s immunity claims before the DC Circuit.

While most attention will be on the absolute immunity claims, given the disqualification of Trump in Colorado and Maine, I’m more interested in Smith’s response to Trump’s claim that his impeachment acquittal precludes these charges.

That’s because, depending on how this appeal goes, Jack Smith could make the question of Trump’s (dis)qualification much easier by superseding this indictment with an insurrection charge.

Most of the response argues that impeachment and criminal charges are different things. That argument is likely to prevail by itself.

In addition, though, the response repeated a passage, almost verbatim, that appeared in Smith’s response before Chutkan. In it, Smith said that the elements of offense currently charged do not overlap with the elements of offense for an insurrection charge.

Any double-jeopardy claim here would founder in light of these principles. Without support, the defendant asserts that his Senate acquittal and the indictment in this case involve “the same or closely related conduct.” Br.52. Not so. The single article of impeachment alleged a violation of “Incitement of Insurrection,” H.R. Res. 24, 117th Cong. at 2 (Jan. 11, 2021) (capitalization altered), and charged that the defendant had “incit[ed] violence against the Government of the United States,” id. at 3. The most analogous federal statute is 18 U.S.C. § 2383, which prohibits “incit[ing] . . . any rebellion or insurrection against the authority of the United States or the laws thereof.” A violation of Section 2383 would therefore require proof that the violence at the Capitol on January 6, 2021, constituted an “insurrection against the authority of the United States or the laws thereof” and that the defendant incited that insurrection. Incitement, in turn, requires proof that the speaker’s words were both directed to “producing imminent lawless action” and “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927-28 (1982). None of the offenses charged here—18 U.S.C. § 371, 18 U.S.C. § 1512(c)(2) and (k), and 18 U.S.C. § 241—has as an element any of the required elements for an incitement offense. And the elements of the charged offenses—e.g., conspiring to defeat a federal governmental function through deceit under Section 371, obstruct an “official proceeding” under Section 1512, and deprive persons of rights under Section 241—are nowhere to be found in the elements of a violation of Section 2383 or any other potential incitement offense. The mere fact that some of the conduct on which the impeachment resolution relied is related to conduct alleged in the indictment does not implicate the Double Jeopardy Clause or its principles. See Dixon, 509 U.S. at 696.

This doesn’t mean that Smith will supersede Trump, if this appeal succeeds. There are a lot of reasons not to do so (including that Trump would get to file a motion to dismiss that charge).

That said, Smith might have another reason to do so if SCOTUS significantly narrowed the obstruction charge in the Fischer appeal, because the obstruction charge is how Smith is presenting the evidence that Trump caused the attack on the Capitol.

In my view, this language keeps options open.

Jim Jordan Says Trump’s Years of Blowing Off Subpoenas May Merit Impeachment

/41 Comments/in , , , , , /by

In another ploy to get journalists at dick pic-sniffing right wing outlets like JustTheNews and NBC to air false claims, Jim Jordan and James Comer sent the White House a letter demanding any communications the White House had with Hunter Biden or his lawyers about blowing off a subpoena that — the letter itself notes — was issued before the chairmen obtained support of the House to issue impeachment subpoenas.

They base their claim that the President knew his son was going to blow off a subpoena on a misrepresentation of what Press Secretary Karine Jean-Pierre said later that day: that the President was familiar with what his son was going to say.

Look, as you know, Hunter Biden is a private citizen, and so I certainly would refer you to his representatives. Look, the President was certainly familiar with what his son was going to say, and I think what you saw was from the heart from his son. And you’ve heard me say this, you’ve heard the president say this, when it comes to the president and the first lady, they’re proud of him continuing to rebuild his life. They are proud of their son.

Perhaps Jean-Pierre was suggesting Joe Biden knew Hunter would say things like, “James Comer, Jim Jordan, Jason Smith, and their colleagues have distorted the facts,” a true statement similar to comments Joe himself has made. Perhaps Jean-Pierre’s comment meant that Joe Biden knew his son would say that Jordan and Comer, along with Jason Smith, “ridiculed my struggle with addiction [and] belittled my recovery,” something consistent with her own focus on his recovery. Given Jean-Pierre’s observation that “what you saw was from the heart,” perhaps she was referring to Hunter’s tribute to his parents’ love:

During my battle with addiction, my parents were there for me. They literally saved my life. They helped me in ways that I will never be able to repay. And of course they would never expect me to. In the depths of my addiction, I was extremely irresponsible with my finances. But to suggest that is grounds for an impeachment inquiry is beyond the absurd. It’s shameless. There’s no evidence to support the allegations that my father was financially involved in my business because it did not happen.

[snip]

They have taken the light of my Dad’s love — the light of my Dad’s love for me and presented it as darkness.

There is nothing in her statement that confirms foreknowledge that Hunter would blow off the subpoena, something conceded in the letter that her statement only, “suggests that the President had some amount of advanced knowledge that Mr. Biden would choose to defy two congressional subpoenas” [my emphasis].

Nevertheless, serial liar Comer and subpoena scofflaw Jordan use Jean-Pierre’s statement to insinuate that Joe Biden has committed what they themselves call a potentially impeachable offense of dissuading a subpoena recipient from complying with it.

Later on December 13, when asked whether President Biden had watched Mr. Biden’s statement, White House Press Secretary Karine Jean-Pierre stated that President Biden was “certainly familiar with what his son was going to say.”11 Ms. Jean-Pierre declined, however, to provide any further details about the President’s actions or whether the President approved of his son defying congressional subpoenas.12 Nonetheless, Ms. Jean-Pierre’s statement suggests that the President had some amount of advanced knowledge that Mr. Biden would choose to defy two congressional subpoenas.

Under the relevant section of the criminal code, it is unlawful to “corruptly . . . endeavor[] to influence, obstruct, or impede the due and proper exercise of the power of inquiry under which any investigation or inquiry is being had by . . . any committee of either House or any joint committee of the Congress[.]”13 Likewise, any person who “aids, abets, counsels, commands, induces or procures” the commission of a crime is punishable as a principal of the crime.14

In light of Ms. Jean-Pierre’s statement, we are compelled to examine the involvement of the President in his son’s scheme to defy the Committees’ subpoenas.

[snip]

[T]he fact that the President had advanced awareness that Mr. Biden would defy the Committees’ subpoenas raises a troubling new question that we must examine: whether the President corruptly sought to influence or obstruct the Committees’ proceeding by preventing, discouraging, or dissuading his son from complying with the Committees’ subpoenas. Such conduct could constitute an impeachable offense.

11 Press Briefing by Press Secretary Karine Jean-Pierre and NSC Coordinator for Strategic Communications John Kirby. White House Briefing Room (Dec. 13, 2023).

12 Id. 13 18 U.S.C. § 1505 (Obstruction of proceedings before departments, agencies, and committees).

14 18 U.S.C. § 2(a).

Once you wade through all the bad faith and misrepresentation, this is a breathtaking development: Donald Trump’s most vigorous defender in Congress, Jim Jordan, someone who himself defied a subpoena to cover up Trump’s actions, has accused Donald Trump of committing an impeachable offense.

There are a slew of ways that Donald Trump, “prevent[ed], discourag[ed], or dissuad[ed]” witnesses from complying with subpoenas, during both his impeachments, the January 6 Committee, and elsewhere. Most famously, during the first impeachment, for example, Trump attorney Jay Sekulow got Trump to permit Trump attorney John Dowd to represent Lev Parnas and Igor Fruman. In a response to a subpoena that was very similar to the pre-impeachment vote subpoena sent to Hunter Biden, Dowd made a bunch of claims about attorney-client relationships that, with the exception of the tie to Dmitry Firtash, have since been disproven, all in an attempt to deprive Congress of their testimony. While Parnas eventually cooperated with impeachment, neither Fruman nor Rudy did. Indeed, Trump’s entire Administration blew off the inquiry.

Trump did the same with the January 6 inquiry. Trump attempted to pressure Cassidy Hutchinson about her testimony. Even better documented, Robert Costello described that Trump’s lawyer instructed him to withhold materials about a meeting involving a bunch of lawyers but also Mike Flynn based on an attorney-client privilege claim. On Jordan’s logic, Trump should join Bannon in his 4-month contempt sentence for that intervention.

In short, while Comer and Jordan manufactured the claim that President Biden knew Hunter was going to blow off a subpoena, the evidence that Trump has ordered everyone in his orbit to do the same for years is overwhelming.

Once you argue that instructing people to blow off subpoenas merits impeachment, you’ve made the case for a third Trump impeachment.

Comer and Jordan have already surfaced far more evidence supporting an impeachment of Donald Trump than Joe Biden. Three major examples are:

  • Ties between DOJ access and dirt on Hunter Biden: In response to Comer’s allegations about Hunter and Joe Biden, Lev Parnas has renewed allegations he made in the past, much of which are backed by known communications and the recently released warrants from SDNY. Of particular note, he described that Rudy floated access with Trump’s DOJ in exchange for dirt on the Bidens with both Yuriy Lutsenko and Dmitry Firtash. Parnas also claimed that when he attempted to fly to Vienna on October 9, 2019, he believed he would retrieve content stolen from a Hunter Biden laptop.
  • Efforts to funnel Rudy Giuliani’s dirt to the investigation into Hunter Biden: Chuck Grassley revealed that during his first impeachment, when Trump was emphasizing the import of investigating Burisma corruption, his own DOJ shut down a 3.5-year old investigation into Mykola Zlochevsky. Testimony from Scott Brady enhanced what we already know about the dedicated channel Bill Barr set up days later for dirt Rudy had obtained, including from known Russian agents. Of particular import, Brady revealed that he mined the recently closed Zlochevsky investigation to obtain informant testimony about how Zlochevsky changed his story about Joe Biden during the course of impeachment. Brady and Gary Shapley both provided new details of how that information got shared with the Hunter Biden investigative team, with Brady submitting interrogatories about what they were investigative and getting David Weiss’ intervention to brief the information they obtained. Ultimately, after Trump yelled at Bill Barr about the Hunter Biden investigation, Richard Donoghue ordered the Delaware investigators to accept the FD-1023 memorializing Zlochevsky’s changed story about Biden; Bill Barr confessed that he was involved in this process. In short, Jordan and Comer, with an assist from Grassley, have confirmed many of the suspicions that drove the first impeachment.
  • Trump’s involvement in Tony Bobulinski’s inconsistent FBI testimony: The disgruntled IRS agents released Tony Bobulinski’s draft interview report (from the same day as the briefing about Zlochevsky’s changed Biden claims), key claims in which are not backed by previously unreleased communications. The disclosure of testimony that Hunter Biden alleges to be false comes even as Cassidy Hutchinson’s book describes a secret meeting Mark Meadows had weeks after that FBI interview, at which Trump’s chief of staff handed Bobulinski something that could be an envelope.

Thanks to Comer and Jordan — with an important assist from Grassley — Republicans have exposed that Trump has been corruptly involved in the Hunter Biden investigation — the Hunter Biden investigation they’re using to impeach Joe Biden — from the start.

But this letter is different.

Comer and Jordan never admitted that all the rest — all the evidence that Trump corruptly ginned up an investigation into Joe Biden’s kid — merited impeachment. They have claimed the opposite, even in the face of Grassley’s stunning claim that Trump’s DOJ shut down an investigation into Zlochevsky opened when Biden was Vice President.

But here, at long last, they’re admitting that Trump’s years-long efforts to stonewall Congress may merit impeachment.

Mind you, the outlets that believed this letter was newsworthy didn’t mention that fact. Instead, they treated Jordan’s stunning hypocrisy as if it were a good faith intervention. They didn’t even mention that Jordan himself blew off a subpoena to protect Trump!

We know why John Solomon — implicated himself in all these events — pretended this was all good faith. Solomon doesn’t pretend to be anything but a pro-Trump propagandist.

But NBC has no excuse. Either it is too stupid to recognize that this Jordan letter is the height of bad faith … or it is too addicted to dick pic-sniffing clicks to explain all that to their readers.

At some point, Jim Jordan’s confession that Donald Trump really did deserve impeachment becomes the story.

Update: I should have included Luke Broadwater — the NYT scribe who can’t do basic things like test the provenance of documents — in the right wing outlets that simply parroted Jordan’s garbage.

Jonathan Chait’s Rube-Con Lets SCOTUS Off Easy

/118 Comments/in , /by

Congratulations to Jonathan Chait, whose stupid column arguing against excluding Trump from the ballot won him recognition from the alleged insurrectionist himself.

To be sure, there are sound arguments against the Colorado ruling, even sounder ones against immediate SCOTUS action upholding or overturning it.

Chait — who boasts that Trump once labeled him a “no-talent illiterate hack” — does not make such an argument.

Chait abdicates any responsibility for reading the opinions at issue because, he says, he’s not competent, lacking the talent and literacy to read legal documents.

I am not a lawyer, and I won’t comment on the legal merits of the case.

Then, having declared himself incompetent to comment on the legal merits of the case, Chait proceeds to comment on the legal merits (or maybe he considers these mere political merits?) of labeling Trump an insurrectionist.

The argument for disqualification is quite simple. The Constitution bars officeholders who engaged in insurrection; on January 6, 2021, Trump engaged in insurrection; therefore, Trump is ineligible to hold office.

The weak point in this argument is the finding that Trump’s behavior constitutes “insurrection.” This is a defensible shorthand for January 6, one I’ve used frequently myself. But it’s not the most precise term. When I have the chance to use a longer description, I generally say that Trump attempted to secure an unelected second term in office.

Trump’s plan was to mobilize a mob to intimidate Congress into following his scheme to ignore the election results. His use of violent threats to secure power is obviously unforgivable, authoritarian, and very likely criminal. But there is at least some grounds to question whether it was an “insurrection” in the meaning intended by the 14th Amendment. Trump was not trying to seize and hold the Capitol nor declare a breakaway republic. [my emphasis]

Whether or not Trump is an insurrectionist under the meaning of the 14th Amendment, and Trump’s own failure to define insurrection in a way that excludes January 6, is something addressed in the opinions Chait has excused himself from reading.

For example, here’s some of how the Colorado Supreme Court — after a trial, after Trump mounted a defense — came to rule that January 6 qualified as an insurrection.

¶183 Finally, we note that at oral argument, President Trump’s counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion.

[snip]

¶185 The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection.

¶186 It is undisputed that a large group of people forcibly entered the Capitol and that this action was so formidable that the law enforcement officers onsite could not control it. Moreover, contrary to President Trump’s assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—that the mob was armed with a wide array of weapons. See Anderson, ¶ 155. The court also found that many in the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers’ batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol. Id. at ¶¶ 156–57. The fact that actual and threatened force was used that day cannot reasonably be denied.

¶187 Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose . . . . They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” Id. at ¶ 243. And upon breaching the Capitol, the mob immediately pursued its intended target—the certification of the presidential election—and reached the House and Senate chambers within minutes of entering the building. Id. at ¶ 153

¶188 Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. Id. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire—which included threats of physical violence—was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. Id. at ¶¶ 163, 179–80; see U.S. Const. art. I, § 3, cl. 4; id. at art. II, § 1, cl. 3. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties. Anderson, ¶¶ 148, 170, 172–73

¶189 In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection, and thus we will proceed to consider whether President Trump “engaged in” this insurrection.

In a column claiming to defend the interests of democracy, Chait substitutes his own self-confessed incompetent opinion — the “longer description” he sometimes uses instead of “shorthand,” when he uses “insurrection” — for that of duly appointed judges applying the laws of a specific state.

He does so while expressing another legal opinion: that Trump’s actions on January 6 were “very likely criminal.”

This is where Chait’s column turns into word salad — perhaps demonstrating that Trump was right about his literacy. First, there’s this bit about timing.

[T]he timing of the court’s ruling makes it more imperative that its reasoning be unassailable. And the conclusion that Trump’s attempt to secure an unelected second term was “insurrection” isn’t solid enough to bear the weight of the outcome it supports.

To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary. It would be seen forever by tens of millions of Americans as a negation of democracy. It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.

Chait argues that the Colorado ruling — the one he has excused himself from addressing, one he seems to believe he is incompetent to address — “isn’t solid enough” for kicking Trump off the ballot. But this bit seems to confuse who is wrong.

It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.

Is he talking about the Colorado Supreme Court? Wouldn’t he then mean their decision must be “incontrovertibly right,” not wrong, to support booting Trump off the ballot?

It’s an important distinction, because how we adjudicate things to be incontrovertibly right in the US is a legal issue.

Even before he gets there, though, Chait spews some other word salad.

The timing of this decision is important context to its democratic legitimacy. If this ruling had come a year earlier, the Republican Party would have had time to organize a campaign built on the assumption Trump would be ineligible. But a month away from the first primary is late to change the rules of the game.

I am not arguing the timing rules out legal intervention. Trump is obviously facing several potentially adverse legal rulings. But most of those crimes are unambiguous, and the timing was determined by Trump himself, who deliberately set out to drag out the legal process as long as possible, specifically in order to force the rulings into the presidential campaign so that he could call it illegitimate.

First the substance, best as I understand it. Chait says that the timing of kicking Trump off the ballot is the problem here, but then admits that Trump himself has “drag[ged] out” “potentially adverse legal rulings,” so “he could call [the legal process] illegitimate.”

So far, I think this means that Chait says decisions have to appear fair for people who want to vote for Trump. He admits Trump is stalling … something … so as to be able to make false claims about that something to be unfair. Chait doesn’t weigh the equity of Trump’s stall against the interests of those who want to vote for Trump.

Chait only considers the interests of those who want to vote for Trump, not the interests of those who want to uphold rule of law, including the Constitution and the premise that the legal opinions of duly appointed judges who are competent to weigh in should probably carry more weight than the equivocations of a guy who confesses he’s not competent to do so.

And I can’t really be sure because Chait gets awfully vague when he talks about those things that Trump is dragging out: the potentially adverse legal decisions. But I think those things are trials. Including his federal trial on charges tied to January 6. I think that Chait is admitting here that Trump is dragging out the trial that would subject Trump’s actions on January 6 to a jury of American citizens, even while arguing that it’s not fair to people who want to vote for Trump to boot him from the ballot just before the primary.

He may not realize it, but if I’m translating this word salad correctly, Chait has just admitted the problem here: that Trump himself has stalled the best way to decide whether he should be disqualified from running, a far better way than having Colorado judges decide: A trial.

In an ideal world, SCOTUS, with the assistance of the DC Circuit, could resolve this issue in the most just way: Forestall any decision on the Colorado decision (Trump will be on the primary ballot as soon as he appeals the decision, so any delay will do nothing to change the status quo), but ensure that a January 6 trial happens before general election ballots are printed.

The just legal thing would be to prevent Trump from holding up criminal legal accountability while he also claims he can’t be legally accountable via other means. And heck, if SCOTUS believes they’re going to rewrite the 18 USC 1512(c)(2) statute with which Trump and hundreds of other January 6ers have been charged, they should do that quickly, too, so Jack Smith can supersede Trump, formally, with insurrection, so a jury of American citizens can weigh in on the question of whether January 6 was an insurrection or not.

The smart political stance — since Chait disclaims any competence to weigh in on legal issues — would be to deprive Trump and his supporters of claiming there’s a problem with the timing of Colorado’s action while Trump at the same time is depriving not just Trump opponents, but even Republican primary voters who should get to know whether their favorite candidate is even eligible to be President before they vote in the primary, of the most legitimate means to decide this issue, a trial.

Having Trump’s eligibility be determined state-by-state, by duly appointed judges, is less than ideal. I agree that Trump supporters would hate that.

But that makes the better way of determining his eligibility, a trial, all the more important.

I don’t care who you are, whether you’re competent to weigh in on the legal opinion or not, whether you’re illiterate or not. If you believe Trump’s eligibility should not be decided by unelected judges, then the only defensible position — Republican or Democrat, literate or no — is to ensure that Trump stands trial before general election ballots get printed, so a jury can weigh in on Trump’s actions on January 6.

Ensuring that happens is absolutely among the choices the Supreme Court faces. Making that choice clear is a far smarter political choice than whatever it is that Chait engaged in.

“Whether Others … Said Untrue Things on the Internet Does Not Exonerate” Trump

/26 Comments/in , , /by

Obstinately adhering to the pre-existing pre-trial schedule even though Trump’s immunity appeal has stayed all deadlines, Jack Smith just submitted a motion in limine asking to exclude a bunch of things from any eventual January 6 trial.

Altogether, the filing asks Judge Chutkan to exclude the following:

  1. Claims of selective and vindictive prosecution that will be settled when Chutkan rules on Trump’s motion to dismiss on the same topic
  2. Claims of investigative misconduct based on Carol Leonnig’s misleading article about the investigation
  3. Topics — such as claims that the First Amendment covers his alleged fraud — that are matters of law
  4. The consequences Trump might face, including electoral, if the jury convicts
  5. Claims that law enforcement did not adequately prepare for January 6
  6. Claims that January 6 was a FedSurrection incited by undercover feds
  7. Claims that the disinformation of foreigners, and not Trump’s own lies, mobilized January 6
  8. Discussions of revisions to the Electoral College Act passed to prevent Trump from criming (in this particular way) again
  9. Opinions from others about Trump’s state of mind
  10. Attempts to elicit witnesses to invoke privileges — such as attorney-client or Speech and Debate

The most important of these is what I’ve listed as number 9: an attempt to get witnesses to expound about what Trump’s state of mind was.

The defendant’s state of mind during the charged conspiracies will be a key issue at trial. Both parties will introduce circumstantial evidence of the defendant’s state of mind, and the defendant may choose to testify himself. But the defendant should be precluded from eliciting speculative testimony from any witnesses other than himself about the defendant’s state of mind or beliefs about the election or his claims of election fraud. In the particular circumstances here, such testimony—which would go to an ultimate issue for the jury’s consideration—would be speculative, unhelpful to the jury, and unfairly prejudicial, and should thus be excluded.

Eliciting such speculation from witnesses about what the defendant knew or believed would violate Rule 602’s precept that all non-expert witnesses must testify based only on “personal knowledge,” and Rule 701’s requirement that non-expert witnesses can provide opinion testimony only if it is based on personal knowledge and is helpful to the jury.

[snip]

Allowing witnesses to share their personal views about the defendant’s state of mind likely will only distract the jury from its duty to assess and weigh the facts, as opposed to the speculation of fact witnesses. Because a witness’s personal opinion about the defendant’s beliefs or knowledge has little or no probative value, any weight the jury gives to it is likely to be undue and based on improper considerations.

This is the kind of testimony that Trump-friendly witnesses — even Mike Pence!! — have often offered in the press. And Trump could call a long list of people who’d be happy to claim that Trump believed and still believes that the election was stolen.

But as the filing notes, that would be inadmissible testimony for several reasons. It would also be a ploy to help Trump avoid taking the stand himself.

That said, there are several quips in the filing, which was submitted by Molly Gaston (who has had a role in earlier Trump-related prosecutions), that are more salient observations about Trump.

For example, in one place, the government argues that Trump should not be able to argue (as he has in pretrial motions) that it’s not his fault if his rubes fell for his lies.

A bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him. A fraud defendant cannot claim to the jury that his victims should have known better than to fall for his scheme. And the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.

Relatedly, the government notes that it doesn’t matter if (as he has also argued) foreign actors also spread disinformation.

Next, any argument that foreign actors—rather than the defendant, and his ceaseless, knowingly false claims of election fraud—were responsible for inflaming his followers and causing the Capitol riot is nothing more than an infirm third-party guilt defense.

[snip]

[I]n any event, whether others—be they civilians or foreign actors—said untrue things on the internet does not exonerate the defendant for the lies he told to his followers or the criminal steps he took to illegally retain power.

In 2016, Russians got too much credit for the lies they told on the Internet, absolving the more effective right wing trolls (some of whom themselves had ties to Russia) with which Trump had direct ties. In advance of his trial, Trump has tried to repeat that error, blaming Russia (and China) for his far more systematic and powerful lies.

While Judge Chutkan won’t have opportunity to rule on this motion for months yet, Molly Gaston is trying to lay a marker that, this time, Trump will be credited for the power and effect of his own lies.

Rudy’s Seized Devices Were More Useful for Investigating January 6 than Marie Yovanovitch’s Firing

/39 Comments/in , , , /by

On April 28, 2021, the FBI seized up to 18 devices from Rudy Giuliani. On Tuesday, DOJ unsealed the affidavit behind that seizure.

The affidavit, read in conjunction with Barbara Jones’ Special Master reports, Rudy’s privilege log from the Ruby Freeman lawsuit, and a filing he submitted in that suit provide abundant evidence that the devices FBI seized on April 28, 2021 were more useful for investigating January 6 than any suspected FARA violations involved in the firing of Marie Yovanovitch.

And this goes well beyond Robert Costello’s claim that a number of the devices seized from Rudy were corrupted.

The affidavit, as written, was narrow: it only covered FARA violations tied to the role of Yuriy Lutsenko and other Ukranians in the firing of Ambassador Yovanovitch in spring 2019. While there is evidence cited in the affidavit from a broad period of time (for example, describing Rudy’s public admissions that he did certain things in early 2019 later that year), the last overt act described in the affidavit is of someone — probably Victoria Toensing — texting Rudy on May 9, 2019, complaining that people were asking about whether she had registered under FARA and denying that she had a client.

Remarkably, then, the affidavit asked for — and Judge Paul Oetken authorized — the authority to seize “any and all” devices at Rudy’s office and home almost two years after that last overt act.

Judge Oetken authorized that search and seizure even though one of the phones described in the affidavit — an Apple iPhone X that Rudy first started using on January 20, 2021 — could not possibly have been used in the suspected crime described in the affidavit. And three more of the devices described in it, including another iPhone, were only put in use later in 2019.

I’ve long argued that by September 2021, DOJ at least contemplated obtaining other warrants to access that content (because SDNY successfully argued to do the privilege review on all content that post-dated January 1, 2018). But given the scope of those devices, it looks likely that there was at least one other affidavit presented to Oetken in April 2021, one that would justify seizing those later devices.

This table shows (on the vertical axis) the devices that Rudy says were seized and (on the horizontal axis) the devices that FBI thought they’d find.

While Rudy’s own description of these devices (including the model number of the MacBook used in planning January 6, here listed as A22251) is as unreliable as everything else about him, the FBI didn’t find the two iPhone Xes — one used between January 8, 2018 and August 13, 2019, the other used between April 5 2018 and August 27, 2019, both marked in yellow above — that would have been Rudy’s primary phones during the events described in the affidavit.

Just three devices — two iPads and one iPhone 11 — clearly match the description of what the FBI expected to find.

All of them were, according to Rudy’s description (marked in the vertical “January 6 column”), among those used in planning January 6.

Whichever iPhone 11 they did find is almost certainly device that Special Master Jones labeled as device 1B05, the privilege review of which she described this way:

I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1

Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.

1 Additional non-designated items were released on January 19, 2022.

Those 25,000 chats were easily the most voluminous content turned over from any one device to the FBI. Of all the chats that Rudy attempted to withhold from that phone, he ultimately only succeeded in withholding 40 items. 40 chats or texts out of 25,000 total.

262 items in Rudy’s privilege log come from that phone. Another 127 come from a device, 1B09, also used to text about January 6 (including with Mark Meadows), which — given the date scope — must have been among the first devices Jones reviewed. That’s one possible source of a Ken Chesebro document included in the indictment but not identified in the January 6 Report.

And while Rudy withheld those documents from Ruby Freeman, since Jones only permitted Rudy to withhold 43 items total from DOJ, those must have been deemed non-privileged in the Special Master review. (I’ve noted before that there are easily 40 items that clearly relate to Rudy’s own lawyers.)

They were all turned over to DOJ, for use with whatever investigative teams had obtained warrants to access them, no later than January 21, 2022.

This is one thing Rudy accomplished by defaulting on discovery: Withholding from Ruby Freeman, and therefore from a public trial that would precede Republican primaries, documents that were turned over to DOJ in January 2022.

By April 2021 when — using warrants approved on Lisa Monaco’s first day on the job, but nevertheless a year after Bill Barr started obstructing this investigation — the FBI came looking for devices involved in Rudy’s suspected FARA violations tied to getting Marie Yovanovitch, they didn’t find the devices he would have been using at the time.

They did, however, find three devices on which Rudy planned January 6. And because of the way DOJ did the privilege review on those devices, those records would have been made available to any investigators with a lawful warrant no later than January 21, 2022.

Perjury Trapped: Rudy Giuliani’s Sync Sink

/27 Comments/in , , /by

As I noted here, I’m just beginning to go through the warrants from SDNY’s Lev Parnas and Rudy Giuliani investigation the NYT liberated.

I want to start with a very minor point about the apparent inconsistencies between what SDNY found when they conducted searches on Rudy’s cloud and what Rudy claimed — purportedly under penalty of perjury — before Beryl Howell.

In the Ruby Freeman case — the first one, not her renewed suit to enjoin him from continued lies about her — Rudy claimed that he didn’t need to separately search his messaging accounts, because his phones were all synced to his iCloud.

All of my [redacted]@icloud.com iCloud data would have also been included in the TrustPoint data because I synced my iCloud to my devices.

But SDNY, when they searched his iCloud back in 2019, discovered that known messages were not there.

On or about November 4, 2019, the USAO and FBI sought and obtained from the Honorable J. Paul Oetken, United States District Judge for the Southern District of New York, a warrant (the “November 4 Warrant”) for records in iCloud accounts belonging to Giuliani and [Victoria Toensing].

[snip]

As discussed above, on November 4, 2019, the FBI and USAO sought and obtained a search warrant for, among other things, Giuliani’s iCloud account. However, the iCloud did not contain many of the text messages outlined above with Parnas and [Fruman] during the December 2018 to April 2019 time frame. Based on my training and experience, as well as my review of records provided by Apple, I believe the iCloud account did not contain text communications from early 2019 because Giuliani did not backup that content, or removed it from the backup, and not because it does not exist. Indeed, for the reasons set forth below, including Giuliani’s public statement that he has retained potentially relevant communications on his cellphones, there is probable cause to believe that, unlike the iCloud account, evidence of the Subject Offenses continue to be maintained on the Subject Devices.

But, according to Robert Costello, in a declaration that — unlike Rudy’s — was actually notarized and so worth something if you ignore the obvious spin in his representations of what SDNY told him — when SDNY reviewed at least seven of those devices, they were corrupted.

Rudy’s messaging wasn’t in his iCloud when SDNY looked in 2019. And it wasn’t in his phones when SDNY looked in 2021. And yet this year, he claimed the content in both places would be the same.

Colorado Accelerates Timeline and Scope of SCOTUS Review of Trump’s January 6 Conduct

/307 Comments/in , , /by

Colorado just booted Trump from the ballot, building on the lower court ruling that no only was January 6 an insurrection, but Trump is an officer thereby disqualified to be President.

I’m not going to read the opinion closely — I’m sure the whole world will do that.

This ruling’s impact will be more important for the way it will accelerate and expand the scope of the Supreme Court’s review of Trump’s January 6 conduct. The state has stayed their decision until January 4, giving Trump time — but not much — to appeal.

Therefore, to maintain the status quo pending any review by the U.S. Supreme Court, we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.

There’s a non-zero possibility this will lead SCOTUS to accelerate their consideration of the Absolute Immunity appeal, which is more important in the near and long term. After all, if Trump were found guilty, then states really could and should consider the 14th Amendment implications.

One more point: Because Trump will have appealed by January 4, he will be on the primary ballot, giving SCOTUS lots of time to consider this issue before the General. But it really does put the onus on SCOTUS to decide a lot of these issues quickly.

11th Circuit Adopts DC Logic that Mark Meadows and Trump’s Campaigning Is Not an Official Act

/167 Comments/in , /by

The 11th Circuit just ruled that Mark Meadows cannot remove his prosecution in the Georgia case to Federal court. The primary basis for the ruling is a technicality: That removal only applies to current federal officials, not former ones.

But the court, in an opinion by Chief Judge William Pryor, also explained that they wouldn’t have approved the removal in any case because Meadows (and by extension, Trump) had no authority over state elections and electioneering of Meadows (and by extension, Trump) was not in their official duties.

This passage, for example, adopts the logic of Amit Mehta’s opinion in Thompson, which was in turn adopted in Sri Srinivasan’s opinion in Blassingame, but does so to the criminal context.

Electioneering on behalf of a political campaign is incontrovertibly political activity prohibited by the Hatch Act. Campaigning for a specific candidate is not official conduct because the office of the President is disinterested in who holds it. See Thomspson, 590 F. Suppl. 3d at 82. Indeed, the political branches themselves recognize that electioneering is not an official federal function.

Elsewhere, Pryor’s opinion solidly debunks Meadows argument — adopted by Trump’s in his own filings — that the Take Care Clause gave him basis to intervene.

Meadows argues that the Take Care Clause, U.S. CONST. art. II, §3, empowers the President with broad authority to “ensure that federal voting laws are enforced.” But he concedes that the President has no “direct control” over the indidviduals — members of Congress and state officials — who conduct federal elections. And tellingly, he cites no legal authority for the proposition that the President’s power extends to “assess[ing] the conduct of state officials.” We are aware of no authority suggesting the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally-authorized act.

These are precisely the issues that the DC Circuit or, if it accepts Jack Smith’s appeal, SCOTUS, will be reviewing in weeks ahead. And by the time whoever reviews it does so, a very conservative judge will have backed the same logic coming out of DC.

Say Her Name: The Story of Ruby Freeman and Shaye Moss’ Vindication

/82 Comments/in , , /by

After a jury awarded Ruby Freeman and her daughter $148 million for the intentional lies the former president’s former lawyer told about them in an attempt to steal an election, this is some of what Freeman had to say:

Good evening everyone. I am Lady Ruby. Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter and held him accountable. And for that I’m thankful. Today is not the end of the road. We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable too. But that is tomorrow’s work. For now, I want people to understand this. Money will never solve all of my problems. I can never move back to the house that I called home. I will always have to be careful about where I go and who I choose to share my name with. I miss my home, I miss my neighbors, and I miss my name.

Freeman’s daughter, Shaye Moss, said this:

As we move forward, and continue to seek justice, our greatest wish is that no one — no election worker, or voter, or school board member, or anyone else — ever experiences anything like what we went through. You all matter and you are all important. We hope no one ever has to fight so hard just to get your name back.

For the women — vindicated by a jury of their peers, Rudy Giuliani’s peers, doing their civic duty — winning this substantial recognition of the damage done to them was about getting their name back.

The comments from the women said so much about the damage that Trump and Rudy’s bullying have done to the nation’s civic fiber.

But that’s not what led the coverage of their victory.

Rudy did.

Here’s how WaPo covered it.

WaPo first named Freeman and Moss in ¶3 of the story. The entire story quotes just 23 of their collective words after the verdict (though quotes or describes their testimony at more length, starting 24¶¶ into the story, after repeating Rudy’s false accusations about the women and the debunking presented at trial.

The damages verdict came in a defamation lawsuit filed against Giuliani, 79, by Fulton County, Ga., election workers Ruby Freeman and Wandrea ArShaye “Shaye” Moss, whom Trump and others on the former president’s campaign and legal teams falsely accused of manipulating the absentee ballot count in Atlanta.

“Today is a good day,” Freeman said, standing outside the courthouse with Moss after a jury awarded the mother and daughter pair $75 million in punitive and $73 million in compensatory damages for defamation and emotional distress.

[snip]

Their attorneys in closing arguments had urged jurors to “send a message” to Giuliani and others in public life that the “facts matter.” On Friday Moss added, “Giuliani was not the only one who spread lies about us, and others must be held accountable, too.”

By comparison, WaPo cited 58 words from Rudy’s post-verdict comments, with pushback on his claims that he hadn’t had a chance to present a case, but not on his comment that if the 2020 election weren’t exposed we wouldn’t have a country anymore.

Though the story described the verdict as a “potentially worrying sign for him as he faces criminal charges in Georgia accusing him of related efforts to overturn Biden’s victory there,” it didn’t talk about how some of the evidence Rudy withheld in discovery might have made that plight worse.

Here’s how Politico covered it (placed on the front page behind a 1,250-word story purporting to describe how impeachment will work, without mentioning there’s no evidence of wrongdoing).

Politico got the names of Ruby Freeman and Shaye Moss in the subhead and the second paragraph.

Politico sandwiched some of Freeman’s comments, 47 quoted words in ¶19, in-between two paragraphs — starting at ¶9 and in ¶24– quoting 49 words of Rudy’s comments.

A few minutes later, Giuliani stood outside the courthouse and declared, “I don’t regret a damn thing.”

The former mayor and federal prosecutor called the monetary award “absurd” and said he would appeal. He denied responsibility for the threats and harassment that Freeman and Moss received — including a bevy of unambiguously racist, violent messages — and said that he receives “comments like that every day.”

[snip]

“Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter — and held him accountable,” Freeman told reporters after the verdict was delivered. “We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable, too,” she said, without elaborating.

[snip]

But after the verdict on Friday, Giuliani offered a different reason for declining to take the stand: “I believe the judge was threatening me with the strong possibility that I’d be held in contempt or that I’d even be put in jail,” he said.

Giuliani didn’t repeat his false claims about Freeman and Moss Friday, but continued to air false claims that the 2020 election was stolen. “My country had a president imposed on it by fraud,” he declared.

Rather than mentioning Moss’ tribute to other civil servants, Politico focused closely on tensions between Rudy and his attorney, Joe Sibley.

Even though the reporters on this story, Kyle Cheney and Josh Gerstein, provide some of the best coverage of all things January 6, the story didn’t mention that by blowing off discovery in this case, Rudy may have tried to keep evidence hidden from Jack Smith.

Like the other outlets, NYT’s story led with an image of Rudy.

But it focused paragraphs two through four on the women.

Judge Beryl A. Howell of the Federal District Court in Washington had already ruled that Mr. Giuliani had defamed the two workers, Ruby Freeman and Shaye Moss. The jury had been asked to decide only on the amount of the damages.

The jury awarded Ms. Freeman and Ms. Moss a combined $75 million in punitive damages. It also ordered Mr. Giuliani to pay compensatory damages of $16.2 million to Ms. Freeman and $16.9 million to Ms. Moss, as well as $20 million to each of them for emotional suffering.

“Today’s a good day,” Ms. Freeman told reporters after the jury delivered its determination. But she added that no amount of money would give her and her daughter back what they lost in the abuse they suffered after Mr. Giuliani falsely accused them of manipulating the vote count.

Because of that early focus, the dead tree version of today’s paper got Freeman’s name — and her declaration that it was a good day — on page A1 three times.

It closed with Freeman’s promise of more.

“Our greatest wish is that no election worker or voter or school board member or anyone else ever experiences anything like what we went through,” she said.

And while this is a an artificial measure, this NYT story also managed to quote more of Freeman’s speech — 31 words — than Rudy’s — 28. While it quoted Rudy attacking the verdict and standing by his lies, it did not repeat his other lies.

As with all the others, this story didn’t consider whether Rudy was protecting himself criminally by withholding related information in discovery.

I get that these measures are totally artificial. I mean this as observation, not criticism.

I get that Rudy is the famous one, Rudy makes this a tale of downfall. Even bmaz made this about Rudy, not the women who faced him down, Ruby Freeman and Shaye Moss.

But I was really really struck by how, even in their vindication, the heroism of what these women did, the heroism of election workers refusing to be bullied, still wasn’t the focus.