Mike Johnson Let a Terrorist Roam the Capitol Yesterday

/63 Comments/in , /by

Mike Johnson had a wild run yesterday. Having once called for “any individual who committed violence” on January 6 to be “prosecuted to the fullest extent of the law,” Johnson seemed to agree with JD Vance that violent attackers should not get pardons.

But after Trump put over a hundred violent criminals out on the streets, Johnson then defended Trump’s pardons, calling to move on.

Over the course of the day, Johnson set up a Committee to keep investigating January 6, boasted about Americans “deserving safety and security” — a wildly inconsistent stance with releasing a bunch of violent criminals, and then accusing Bishop Budde of “sow[ing] division” because she spoke of mercy.

Meanwhile, as this was all going on, Mike Johnson (who as Speaker plays a role in overseeing the Capitol Police) let a terrorist prowl the Capitol.

Stewart Rhodes was in Longworth Office Building lobbying that Jeremy Brown — who, because he also got prosecuted for having unlawful weapons and classified documents in his Florida home, was not released yesterday — get a further pardon so he can be released (it’s unclear how a member of Congress would make this happen, but maybe Yale Law grad Stewie doesn’t understand the legal posture of Brown’s case).

Rhodes was spotted in the Dunkin’ Donuts inside Longworth House Office Building, which is accessible to the public, with a group of people. He said he did not go into the actual Capitol building.

Rhodes said he was advocating for the release of Jeremy Brown, another Oath Keeper who is in prison on federal weapons charges stemming from an investigation into his alleged involvement in the riot.

Rhodes said Brown was not included in Trump’s sweeping pardon of nearly 1,600 people arrested in connection to the rampage and that he went to the Capitol with Brown’s family members. He said that no members of Congress invited him to the Capitol specifically.

“We’re advocating members of Congress, advocating that he be given a pardon also,” Rhodes told reporters.

Rhodes is one of the fourteen people whose sentence Trump commuted, but did not pardon. And he was not only convicted by a jury of sedition and obstructing the vote certification, but Judge Amit Mehta applied a 6-level terrorism enhancement at sentencing.

As Kathryn Rakoczy successfully argued at sentencing, Rhodes had organized an armed force across the river, and regretted not deploying it that day.

I think organizing an armed force across the river that was prepared to come in comes pretty close to being pretty much like advocating for actions that could cause the loss of life. The repeated uses of how we need to have a bloody Civil War comes pretty close. And it is incredibly hard to forget the chilling words of Mr. Rhodes on January 10th that suggests that on January 6th, he was playing a little bit of the long game, but that were the President not to do something about calling up the Oath Keepers and literally starting a civil war, that his view was, “Actually, I should have called in the QRF on the 6th.” And I think when you’re thinking about whether this was terrorism, which we believe it was, all of those factors suggest that something around the level of a six-level adjustment feels right.

This is terrorism. It’s not blowing up a building directly or directing someone else to blow up a building. But certainly in light of the threat of harm and the historic significance of attempting to stop the certification of an election for the first time in U.S. history, those facts together we do think provide a factual basis that supports an increase of roughly six levels.

As Mehta laid out when applying the enhancement, the goal of all this was to influence the conduct of government by coercion.

As I said yesterday, I think as a matter of law, the conduct of conviction of seditious conspiracy meets the description foursquare of what that element — excuse me, what that enhancement requires a showing of, which is an offense other than the one that is enumerated in the Guideline, but the motive was to intimidate or coerce a civilian — I’m sorry, rather than — sorry.

The motive was to — calculated to influence or affect the conduct of government by intimidation or coercion, which were to retaliate against government conduct. Certainly that first clause applies squarely to the conduct of conviction.

And based upon the facts as I found them yesterday and have incorporated them today, Mr. Rhodes and his compatriots’ objective was to affect the conduct of government, specifically Congress, and to do so through intimidation and coercion by means of force, both through the stockpiling of weapons in the event that they needed to be brought across the river — there was an agreement as to that — and then, of course, the actual use of force by others who went into the building and applied that force against police officers who were doing their duty that day.

Trump did not, as he did with Enrique Tarrio, pardon Rhodes. Rather, he left the judgement against Rhodes in place; he simply said, effectively, that three years and a week was a sufficient sentence for a guy who plotted an armed attack on the government.

At least one staffer tried to tell Stewie that it was disrespectful to return to the scene of the crime.

He obfuscated, as he always does.

But the legal fact remains. He has not been pardoned of his sedition conviction and terrorism enhancement. Donald Trump chose to leave the judgment in place (for now, though Rhodes is reportedly still pressing Trump for a full pardon).

And Mike Johnson let him wander around the Capitol, all while claiming discussion of “mercy” was divisive.

Update: Judge Mehta has now barred Rhodes and the other Oath Keepers whose sentences were only commuted from the Capitol.

Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!

/27 Comments/in , , , /by

In an interview with Marc Elias the other day, Dan Goldman made a number of alarming claims. He said that before the release of Jack Smith’s January 6 report, “we didn’t really know about … the extensive litigation that the Special Counsel had to go through just to get this evidence.” That is, Goldman admitted that he missed the unsealing, in October, of the very documents Jack Smith cited to describe that process (which I wrote about at the time). Goldman missed the opportunity to make a stink about this before the election.

Goldman also wondered “if Elon Musk and X, while he has owned it, has ever not cooperated in the same way [as they did in response to a warrant for Trump’s Twitter account] in a different case.” We know the answer to that: according to an opinion Chief Judge Boasberg unsealed (and first spotted by Kyle Cheney, who played a key role in liberating the Executive Privilege dispute), from January to March of last year, Xitter refused to turn over mere subscriber records in what sounds like a leak investigation.

Much later in the interview (after 19:00), Goldman said,

Volume Two of the report is going to provide a lot more information that we don’t know. The litigation in the January 6 case, including the memo outlining all of the evidence, has been so extensive that, as we see from Volume One, there really isn’t that much that we didn’t know. There was also an entire Congressional Committee that did this investigation. This has been exhaustively investigated. And yes they did get more evidence because they had grand jury power. They got more witnesses to speak than the January 6 Committee did. But we’ve known about that.

We know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others. And one of the things that has jumped out at me in that case is that in one of the filings, the Department of Justice, Special Counsel, said, that there evidence includes why Donald Trump retained the information illegally, and what he was planning to do with it. [my emphasis]

From there, Goldman went on to call for Merrick Garland to dismiss the case, which I’m not sure Garland can do without some judge going along (which was the hold up in the Mike Flynn case).

Now, as I have laid out, Jack Smith eschewed the opportunity to make new information available in Volume One of the report. For example, he didn’t explain why an investigation into Trump’s fundraising and spending ended without charges. Based on what we’ve seen in Volume One, I doubt we’d get the kinds of details Robert Hur provided in his 388-page report, describing every document that wasn’t charged and why not. I doubt we’d learn why the FBI believed there was a tie between a grant of clemency for Roger Stone and a document, classified Secret, about Emmanuel Macron, both found in Donald Trump’s own desk drawer. I doubt we’d learn why Trump compiled low-level classified information into a document with messages from a book author, a religious leader, and a pollster.

And I doubt we’d learn what Trump was planning to do with those classified documents.

I want to see the report. But I doubt it’ll include what Goldman hopes it will.

But it is also the case that we have already gotten a great deal of additional information about the investigation.

It’s not the case, for example, that “we know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others.” This filing describes that process at length, relying on both dozens of documents that Trump himself liberated and 302s from those involved, including a key White House Office of Records Management official and Mark Meadows. This section describes Meadows’ involvement, which (along with actions taken by a former Trump White House Counsel, probably Pat Philbin) led to the involvement of Biden White House Counsel Jonathan Su, the basis of Trump’s bogus claim that Biden’s White House pushed the investigation into Trump.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

Exhibit D, cited to support a description of a former Trump official who warned that Trump faced criminal exposure, links to this complete 302, from someone whose potty mouth resembles Eric Herschmann. It describes a bunch of things:

  • How on November 21, 2021, he warned Trump to give the documents back: “Don’t give them a noble reason to indict you, because they will.”
  • How a “total moron” who resembles Boris Epshteyn insinuated himself with Trump with claims of voter fraud and subsequently tried to use something, perhaps claims fed to credulous reporters that he was serving a legal function, to cover for his past activities ( a document Trump himself liberated shows call records between this person resembling Epshteyn and a person resembling Chief of Staff designate Susie Wiles).
  • A February 2022 call in which someone resembling Tom Fitton told Trump he didn’t have to send documents back because of Fitton’s “Clinton Socks” ruling,
  • A prediction that Walt Nauta would be pardoned if he were charged with lying to the FBI.

But it also describes an extended description of someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.

Another dispute — about whether Jay Bratt threatened to retaliate against Stanley Woodward if he didn’t get Walt Nauta to cooperate — includes a long discussion about Kash’s testimony. It revealed how Kash tried to delay compliance with a grand jury subpoena indefinitely by hiring a lawyer already busy defending a January 6 seditionist, and when Kash did first testify, the aspiring FBI Director pled the Fifth repeatedly.

On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.

On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).

Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]

This is the same kind of extended discussion of the delays that Trump and his flunkies created that Goldman claimed, incorrectly, first became available in Volume One of Smith’s report.  And it (plus details of Tim Parlatore’s efforts to stall ongoing searches) has been public since April.

Other disputes provided a bunch more information, including pictures, of where and how Trump stored the documents he withheld, including one of this box, in which Trump was storing a document classified Formerly Restricted (that is, a document pertaining to nuclear weapons), along with nine other documents, underneath a Christmas pillow and some bubble wrap (I annotated the photo to show that the documents charged in Counts 12 through 21 were found in it).

Here are discussions of what was hidden under the bubble wrap.

I tried to put these pictures in context in this post and this post.

A passage in the 193-page 302 transcript from Chamberlain Harris (focusing on how she scanned documents including sensitive White House schedules) describes that the door to the storage closet had only the kind of lock you’d find in a residential bathroom — a pinhole they’d open with a tiny flat screwdriver.

Person 10 [Harris]: They used to unlock it for me, because you could lock it from the inside.

Mr. Thakur: Okay. This is obviously after a lock was placed there, they would unlock it for you?

Person 10: No, this was before.

Mr. Thakur: Okay. So are you talking about a lock to another door, or?

Person 10: It’s a door with a pinhole in it.

Mr. Thakur: A door with a pinhole?

Person 10: Like, I don’t know, a circle doorknob?

SA 41: Kind of like what you would find on residential door inside of a home? So it might have a lock like that one on one side of it then other side, rather than an actual place for a key, it’s sort of like a —

Person 10: Yeah.

SA 41: — very tiny screwdriver?

Person 10: Um-hmm.

SA 51: I see. But that was only on the inside of the door. So you — reasonably couldn’t lock it from the outside unless they used that little pin to reengage the lock from the outside?

Person 10: You would just lock it when you left.

Finally, also in April, we got both the interview transcript and grand jury transcript from Walt Nauta.

In other words, there’s far, far more that got released as part of litigation in the documents case than the January 6 case.

And Dan Goldman, whose job it is to oversee such investigations, seemingly knows about none of that: Not the description of how the aspiring FBI Director stalled the investigation. Not the document claiming that the “declassify everything” claim Kash first made was a lie. And not the description of the back-and-forth with NARA that Goldman says he wants.

It’s all there in the docket. And has been (for the most part) since April.

If you want to know how Democrats failed to make more of a political case against Trump during the election, you can start with the fact that Dan Goldman — one of the Democrats’ most forceful voices on rule of law, a former TV personality, and a member of the House Judiciary Committee — knows almost nothing about what was made public in either of the federal cases against Donald Trump and as a result did little to make a big deal of that before the election.

Fridays with Nicole Sandler

/17 Comments/in , , /by

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

The January 6 Report Is Substantially the Immunity Brief Reporters Ignored in October

/41 Comments/in , , /by

I want to say something about the structure of Jack Smith’s report. For his description of Trump’s alleged crimes, he includes a fairly high level narrative in the text, with detailed footnotes.

A great number of the footnotes — around 178 of them — cite to ECF 252.

ECF 252 is the immunity brief Jack Smith fought hard, over Trump’s objections, to submit in October. The footnotes often then cite the Special Counsel’s Bates stamp identifying that piece of evidence and include a short description of the source.

Take this footnote:

It sources this assertion in the report itself:

Under this plan, they would organize the people who would have served as Mr. Trump’s electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to sign and send to Washington false certifications claiming to be the legitimate electors. 39

It cites to the following language in the immunity brief:

So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly “dueling” slates to the state legislatures for consideration anew.

[snip]

Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.301 When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote.302

And this footnote in the immunity brief.

As advertised, the footnote links to the Appendix and (in this case) the actual fake elector certificates.

In other words, for the narrative sourced to ECF 252 (one part of the narrative not sourced to the immunity brief pertains to the riot itself), we’ve already gotten this material. We got it in October, before the election.

It got only passing coverage.

We got much of this report, in more detailed form, in October. Many of the people who claim releasing this report would have made a difference in the election didn’t read the immunity brief in October, much less make a big deal about it.

The structure is significant for a few more reasons. First, the footnotes in this report sometimes provide more description about what appears in the appendix. Second, for those (including state Attorneys General) who want the evidence from Smith’s prosecution, the place to go is Tanya Chutkan, because it’s all there in her docket, sealed.

Calvinball

/43 Comments/in , , , /by

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

ORDER:

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

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

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

ENTERED FOR THE COURT – BY DIRECTION

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

/83 Comments/in , , , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Narrow the legal dispute

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

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

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

Create a dead man’s switch

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

Implicate the Hunter Biden report

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

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

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

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

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

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

[snip]

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

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

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

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

And that’s why the Hunter Biden report matters.

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

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

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

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

Why and How to Hold John Roberts Accountable

/155 Comments/in , , /by

I want to explain why and how to hold John Roberts accountable for Trump’s corruption. It is based on the following presumptions.

  • Blaming Merrick Garland for Trump’s reelection has required inventing facts about the timeline, which is why I argue it is conspiratorial thinking.
  • Because of how SCOTUS rewrote the Constitution, no counterfactual gets Trump disqualified before the election, and probably doesn’t get him to trial.
  • This was a political failure that started well before January 6.

So one reason I advocate focusing on accountability for John Roberts is because he and his colleagues, in fact, are responsible. They intervened to ensure the leader of their party would evade accountability. And so they enabled everything that comes next.

And Trump has responded by flouting all concern about legal accountability.

  • He set up a kickback system for his inauguration, the proceeds of which will go to his own pocket.
  • Trump boasted of his expanded business deals with the Saudis.
  • He hailed $20 billion in investments from the same guys whose payments Alexander Smirnov was hiding on his taxes.

This is corruption in plain sight. The corruption is the obvious result of Roberts’ grant of immunity. So I propose to track it, name it, make John Roberts own it.

I’m not arguing that doing so will immediately make John Roberts regret what he has done. While Roberts has shown the ability to moderate off his prior shitty decisions, he’s pretty wedded to making corruption legal.

But one of the only short-term guardrails on Trump will be the things the Senate and SCOTUS choose to place on him. They’ve failed every other time they could reverse Trump’s damage, but in his first term, they did push back on his worst instincts. So by at least making the effects of the immunity ruling visible, you increase the chance that Roberts might do so.

The same is true of the violence that Trump will stoke. Roberts doesn’t want to own that. He does.

There’s good reason to go through this exercise, repetitively, insistently, that doesn’t invest hope that it’ll somehow convince Roberts.

MAGAt has spent years building their villain: migrants and trans people.

Defenders of democracy have done a far poorer job of doing the same — so much so that MAGAts have also projected a false claim of corruption onto the Bidens, transferring it from themselves.

But it’s time that we made corruption — and the Republican-picked judges that enabled it — the villain. We need to explain the world, and the explanation really is corruption, not migrants.

And if we do so from the start, with discipline, with repetition, then when Trump’s corruption ends up breaking things, causing catastrophe, that explanation will be ready at hand. I can’t tell you which of Trump’s corrupt schemes will do catastrophic damage first. Possibly his embrace of crypto currency, or maybe the dodgy types who set up his personal piggy banks will do something so shocking that even Pam Bondi’s DOJ can’t look the other way. But when Trump’s corruption causes catastrophe — and it’s a matter of when, not if — we need to be ready to name it, rather than let them scapegoat migrants for Trump’s doing.

There’s one more reason I advocate this approach. As I tried to lay out here, polarization is Trump’s most useful weapon. Every time you present an issue in terms of loyalty to Trump or opposition to him, a great many people will choose Trump, even if only symbolically, because it’s the price of admission to GOP politics. So I advocate, as often as possible, to make someone else the figurehead for the problem.

Even in much of the conspiracy theorizing targeting Garland as the villain, I’ve seen people — smart people!! — who don’t understand the full shocking import of the immunity ruling. Reversing that oversight is a necessary step in reclaiming democracy.

“False in Numerous Respects:” House Democrats Package Up Liz Cheney’s Evidence of “Despicable Malice”

/27 Comments/in , /by

In a letter [alternate link] Cassidy Hutchinson’s attorney, William Jordan, sent to the DC bar, he corrected some of the false claims made in Barry Loudermilk’s report claiming that Liz Cheney had inappropriately suborned perjury from Hutchinson.

The Loudermilk Report is false in numerous respects, including its suggestion that Ms. Hutchinson and Congresswoman Cheney had any improper communications.

[snip]

The Loudermilk Report is replete with other politically motivated falsehoods, but at a minimum Ms. Hutchinson wanted specifically to correct this error because it has been seized on by Mr. Passantino and other individuals in this Complaint. [my emphasis]

The other individuals likely including private citizen Donald Trump.

And that’s interesting because the report in which the letter was published includes an interesting line at the end of a long explanation of why this is an assault on Speech and Debate.

That section cites the Supreme Court opinion holding that “once it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.” Then it cites the amicus brief the GOP sent in support of Scott Perry’s fight to keep content from his phone involving things that had nothing to do with formal oversight from prosecutors. “The Clause is not abrogated by allegations that a legislative official acted unlawfully or with an unworthy purpose, and applies both in civil cases and criminal prosecutions.” It cites to Scott Perry’s own filing. After including Trump’s tweet invoking the report, it trashes Loudermilk’s shoddy analysis.

Then it notes that Speech and Debate protects Loudermilk from any claim of defamation someone might bring against him.

If the Clause did not apply to congressional investigations, Chairman Loudermilk could be subject to liability himself for defamation.

Oh. And then it notes that those without Speech and Debate protection who falsely accused her of a crime, “may also be liable.”

All those who republish these allegations outside speech or debate may also be liable.

And that’s interesting because Cheney — whose reference to this report in a Tweet was the first I heard of it — specifically said that the “report destroying Loudermilk’s fraudulent allegations shows the despicable malice behind Trump’s efforts.”

“Despicable malice” sounds like the kind of thing you might sue over.

Barry Loudermilk Wasted $250K Making Security Footage available on Rumble

/8 Comments/in , /by

In response to Barry Loudermilk’s report on January 6, his counterpart of the committee, Joe Morelle, released a response. [Alternate link]

I’ll say more about its central Speech and Debate argument; as I’ve noted, DOJ can’t investigate Liz Cheney without falling afoul of the same Speech and Debate that protected Scott Perry from investigation for his role in the insurrection.

But there’s an important detail that deserves its own post.

There’s a long section of the report that describes right wing efforts to make security footage from January 6 available. It describes how, rather than hosting the video on the Committee’s own website, right wingers chose to post it on Rumble instead. It includes a quote from USCP Acting Director of Intelligence Julie Farnham about the downsides of doing so: It meant making the content readily available to extremists.

Ms. Farnam: Well, the audience is largely extremists, and those are people who have — not everyone, but some of them have celebrated the threats to our democracy and have worked to undermine our democracy. And so having that security information makes it even more dangerous for the people trying to protect the Capitol and more dangerous for all the Members of Congress.188

And for the privilege of making security video readily available to extremists, the report reveals, Republicans paid $250,000.

In other words, Barry Loudermilk and Mike Johnson wasted tax payer money to make themselves and their colleagues less safe.

The Opportunity Costs of Conspiracy Theories about Merrick Garland

/144 Comments/in , , , /by

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.