ABC News reports that among the things Beryl Howell ordered Trump’s lawyer, Evan Corcoran, to turn over were “transcriptions of personal audio recordings” involving his representation of Donald Trump.

Sources added that Howell also ordered Corcoran to hand over a number of records tied to what Howell described as Trump’s alleged “criminal scheme,” echoing prosecutors. Those records include handwritten notes, invoices, and transcriptions of personal audio recordings.

It also reported that Howell ordered Jennifer Little, an Atlanta attorney who signed a big challenge to Fani Willis’ investigation into Trump’s attempts to cheat in Georgia, to testify further as well.

Sources told ABC News that Howell ordered Little’s testimony as well, with the exception of one of the topics for which she sought to assert attorney-client privilege.

CNN reports that Trump is appealing this decision.

After 16 months, Barbara Jones has submitted her Special Master report in the Project Veritas investigation to Judge Analisa Torres.

See this post for background.

She found 1,021 documents on James O’Keefe, Eric Cochran, and Spencer Meads’ phones that were responsive to the warrants in the case. Of those:

• She reviewed 17 for crime-fraud exception and after asking for submissions on 14 of them (which I noted here), she found that 10 were excepted
• She found 61 documents that Project Veritas successfully argued were not related to the search warrant

By my math, that leaves 953 files she recommends be turned over to investigators.

Much of the decision builds off the guilty pleas that Miles Kerlander and Aimee Harris entered into last August. Having already identified PV’s sources and established a crime had been committed, many of the questions regarding journalistic equities were far more limited.

Jones never mentioned that this case arose — and the first warrants against journalists obtained — under the Trump Administration. Though she does scoff at PV’s claims of malice.

Perhaps the most significant part of this ruling pertains to how she applies Bartnicki, which protects the publication of illegally obtained materials that the journalist had no role in obtaining. Not only does she except the case of PV, who are subjects of the investigation, but she seems to distinguish between investigative protection and criminal protection.

First, Petitioners’ heavy reliance on Bartnicki v. Vopper, 532 U.S. 514 (2001), is misplaced. Bartnicki addressed the narrow question of whether civil liability may be imposed on a publisher who obtained information in a lawful manner but from a source who obtained it unlawfully, a question that the Supreme Court answered in the negative. See id. at 528, 533–35. Here, the question is whether the Government may receive documents responsive to valid search warrants. Bartnicki does not speak to this issue, nor does it provide general principles applicable to my review.

Petitioners repeatedly argue that they are like the publisher in Bartnicki and that their actions fall “within Bartnicki’s protection.” James O’Keefe and Project Veritas’s Brief on First Amendment and Journalistic Privileges 19, Apr. 1, 2022 (“PV Br.”). Petitioners argue that Bartnicki renders the crimes under investigation here—including interstate transportation of stolen property and possession of stolen goods—“non-crimes.”4 Id. But Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not “protect” unlawful acquisition of information. It does not suggest that people are free to commit unlawful acts simply because they are journalists. In fact, Bartnicki explicitly left open the question whether the government may punish not only a publisher’s “unlawful acquisition” of information but “the ensuing publication as well.” 532 U.S. at 528 (addressing only punishment of publication of materials obtained by a publisher lawfully but by a source unlawfully). Bartnicki certainly does not foreclose a government investigation of unlawful acts in acquiring material or excuse unlawful conduct by a journalist. See also Branzburg v. Hayes, 408 U.S. 665, 691 (1972) (“It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”).5 Nor does Bartnicki’s holding restrict the evidence that the Government may receive under the standards set forth above.

4 To the extent Petitioners assert “no credible claim that Project Veritas reporters stole the diary or anything else,” PV Br. 19, the crimes listed in the search warrant include conspiracy to transport stolen property across state lines, interstate transportation of stolen property, and possession of stolen goods.

5 Even if Bartnicki was applicable to this review, that decision was made based on a factual record that clearly established the publisher had nothing to do with the wrongdoing and received the materials in a lawful manner. Petitioners’ roles are currently under investigation.

The judge in this case will now decide whether to accept this report. But the case against James O’Keefe and others would still take some time for resolution.

In another case where a search warrant originally appeared abusive but turned out to be tied to something beyond journalism, NPR reports on how Rolling Stone protected James Meek in its story breaking the story of the search targeting him in child sexual abuse material case.

Posts in this series
The Intent Of The Declaration Of Independence
Problems With The Standard Story Of The Revolutionary War And The Constitution
States Rights
The Better Story
Democracy Is Our Hope For A Better Future
The Thirteenth Amendmeent
The fourteenth Amendment
The Fifteenth Amendment
The Slaughterhouse Cases
Cruikshank, Gun Control, And Bad Rulings
The Major Questions Metadoctrine and The Slaughterhouse Cases
The Supreme Court Has Always Been Terrible

The term “second founding” refers to the fundamental changes made to the US Constitution and in our society by the 13th, 14th, and 15th Amendments. I had not heard this term before did some reading for this this post praising Justice Ketanji Brown Jackson’s questions at oral argument on the recent Alabama redistricting case. Justice Jackson actually knows her history, unlike the Fox News members of SCOTUS, and, well, me.

Shortly after writing that post I heard a podcast featuring Kermit Roosevelt discussing his book, The Nation That Never Was: Reconstructing America’s Story. I read it and was discussing it with a friend who recommended I look into the work of Eric Foner. That led me to his recent book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution.

In this series I’ll take up these two books. They’re short and very readable, and they complement each other. Foner focuses on the events of the period, while Roosevelt focuses on the legal/theoretical side.

The Nation That Never Was

Roosevelt teaches law at Penn, and yes, he’s the great-grandson of Teddy Roosevelt. The premise of his book is that we are telling the wrong story about our constitutional history. The conventional story starts by describing the Declaration Of Independence and the Constitution as our founding documents, incorporating our national values of freedom and equality for all, but hmmm, slavery was bad so we had a Civil War and Reconstruction and cured that problem, but then we found out about racism, and then Martin Luther King solved that problem and now things are great. It’s a story that the right-wing fetishizes.

The rest of us have a more adult view of our history. It doesn’t question starting point of the standard story, the part about the Declaration and the Constitution. But it adds all the horrors of the Jim Crow Era, the abuses of a perverted capitalism against workers of every description, and the horrifying treatment of Native Americans. It’s grim and unsatisfying, but at least it’s more accurate.

Roosevelt thinks we need a story that gives us real heroes, people who give us hope and inspiration for the future. He also thinks we need to look very closely at the founding documents, and the decisions of the First Founders as well as their omissions.

Roosevelt suggests a new story. First we had a system that was OK with the most brutal forms of slavery. Then we fought a war to wipe it out. We won that war at huge cost in blood and treasure. We changed the very nature of our society and we can take pride in that effort and the people who did it. We aren’t perfect. But the Civil Rights Amendments gave us the tools we need to reach for freedom and equality for all, and it’s a task for which we as citizens are all responsible.

Roosevelt discusses reparations, but I’m not going to address that, except to say this. I urge readers to take the time to read this article by Ta’Nehisi Coates. It’s a tough read. I certainly know I have benefited from the current structure of society, almost certainly at the expense of others who have suffered unfairly. I don’t know what to do about that, but it is unjust.

The Second Founding

Foner teaches history at Columbia. I haven’t finished the book yet, but so far there’s a lot of detail about our history I didn’t know or ever think about. Much of that has to do with the sausage-making behind the Civil Rights Amendments, and the arguments made by opponents of those Amendments. I read Heather Cox Richardson’s Letters From An American substack every day, in large part because she is attuned to the parallels between the politics of the Civil War Era and those of today. Here’s an example. In the same way, Ibram X. Kendi shows that arguments by racists never die, and Hannah Arendt shows that anti-Semitism is an endemic hate virus. White supremacy and Christian Nationalism seem to be ineradicable.

Plan

My current plan is to do a fairly short series. I’ll start with the Roosevelt book. There is a conventional view of the Declaration of Independence and the Constitution, but that story is utterly inadequate. Then I’ll turn to Foner’s book to look at the politics of the Reconstruction Amendments, and the way they were weakened by centrists and subverted by White Supremacists and the Supreme Court.

We’ll see what else pops up.

Taken together, I think these two books give us a good introduction to a different way of thinking about our history, one in which we can take pride, one that gives us heroes we can respect, one that sets our aspirations and hopes for our future and our descendants. The history is suitable for grown-ups, and therefore is probably illegal in Florida and Texas.

We can’t fix the past, but we can do better for the future, just as the Second Founders did. That’s what it means to be a citizen.

From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciate for Brandi’s great work, here’s her PayPal tip jar.

The winding road to a verdict in the Proud Boys seditious conspiracy trial has been rocky but after 39 grueling days featuring bitter objections, delays, and a steady stream of motions for mistrial by the defense, a crucial milestone in the historic case was finally reached after prosecutors called their last witness last week. 

Starting Monday, the defense is expected to take the reins and it will be left to them to attempt an unraveling of weeks of evidence and testimony from nearly two dozen government witnesses including former Proud Boy, Jeremy Bertino, who pleaded guilty to seditious conspiracy already and had intimate ties to the ringleader of the neofascist network now on trial, Henry “Enrique” Tarrio. 

Soon, it is expected that Tarrio will take the stand and offer his take on the insurrection at the U.S. Capitol. His co-defendant, the one-time Infowars contributor Joseph Biggs—who seemingly never met a microphone he didn’t want to get in front of—is also expected to testify. Whether their alleged seditious cohorts Ethan Nordean, Zachary Rehl, and Dominic Pezzola will risk joining them, is unclear for now. 

In a trial that has been anything but a one-two punch for the Justice Department, it will be the next (estimated) two to three weeks of proceedings that could ultimately make or break the historic case for prosecutors. 

When the Proud Boys trial opened on January 12,  assistant U.S. Attorney Jason McCullough presented the thrust of the government’s argument to jurors. On its face, the premise was simple enough: Tarrio, Biggs, Nordean, Rehl, and Pezzola coordinated unflinchingly to stop the certification of the 2020 election by sheer force. 

Motivated by Donald Trump’s lie of a “stolen” election and fueled by the fear of a societal collapse triggered by any number of perceived boogeymen (namely, leftists, antifa, communists, and Joe Biden to name a few), McCullough argued the defendants planned to stop the certification by recruiting scores of people—some Proud Boys, some not—to aid them in their coming revolution so when the time for Congress to certify the results of the election finally arrived on Jan. 6, they were ready to strike. 

Witting and unwitting midwives of their revolt alike were the “tools” that Proud Boys needed to help them physically breach police lines, push past barriers, and get inside the Capitol, the prosecution has argued. Some of those “tools” of the conspiracy were members of the organization and others, as government witness and former Proud Boy Jeremy Bertino testified, were “normies” or just anyone who supported Trump and showed up at the Capitol willing to let loose.

From Tarrio, who allegedly oversaw the storming of the U.S. Capitol from afar while cheering it on in private and public alike; to Biggs, Nordean, and Rehl, who whipped people into a frenzy as they stalked to, around, and in the Capitol; and to Pezzola, who prosecutors say smashed apart a window that ultimately allowed a stream of rioters to flow inside the building; the government alleges each defendant played their specific role in leading or executing the greater attempt to upend democracy. 

The Proud Boys as an organization is not on trial and the government has been adamant in defending this point in the last ten weeks of proceedings, always leaving a wide berth for the First Amendment to protect the group’s virulent expression of its “western chauvinist” me-first, America-first, men-first, “fuck-your-feelings” philosophy.

Much energy has been expended by the defense on claims that Tarrio and his co-defendants only stand trial because they are the convenient “scapegoats” of a politically corrupt judicial system that has found them an all-too-easy target when holding the main culprit of Jan. 6 to account, former president Donald Trump, is too challenging.

A week after the second anniversary of the Capitol attack, Tarrio’s attorney Sabino Jauregui introduced himself to the jury for the first time with a concession and then a question: “Jan. 6 was horrible, we agree. But was Enrique responsible?” he said.

The defendants are not on trial for their internal communications, unsavory or steeped in racist misogyny they may be. Nor are they facing charges for the overheated and often paranoid nature of their engagements leading up to and on Jan. 6. And indeed, Donald Trump is not on trial in this case though at one point defense attorney Norm Pattis, for Biggs, did launch a stalled attempt to subpoena Trump for testimony. 

Responsibility. Time and place. Motive. Intent. These have been the prosecution’s focus for its case in chief and through the testimony of Capitol police officers, FBI agents, forensic analysts, and two former Proud Boys themselves. it has been a sweeping case for the government to lay out amid a battery of objections from its multi-defendant opponent. The defense has often spent time twisting itself into knots litigating and re-litigating the admissibility of certain pieces of evidence with little fruit to bear. The central theme to the objections, regardless of the defense attorney, is that the government’s case is overblown and unfounded. For others, like Pezzola’s attorney Roger Roots, or Tarrio’s attorneys, Sabino Jauregui and Nayib Hassan, there have been more regular winks, nods, or at times, outright assertions, during questioning that the FBI has cooked up a sort of deep-state plot against innocent if now rowdy protesters like the Proud Boys. 

Drawn-out fights over evidence have often prompted trial days to begin with jurors forced to enter or reenter the courtroom late or after waiting for a long period of time. 

One recent snarl midday was triggered by what had surfaced in a Proud Boys elder chat known as “Skull and Bones.” It showed chat members referencing Nazi propaganda or users with handles featuring Nazi-affiliated phrasing. Tarrio’s attorney jumped on a motion for mistrial when a text chain appeared to show a “tool” of the conspiracy “Chris Cannon PB” sharing that Nazi propaganda video with Tarrio on Jan. 6. It featured World War II footage of Adolph Hitler saluting victorious Nazi soldiers, among other images from the period. Though jurors saw the video and the surrounding conversation, the defense managed to convince presiding U.S. District Judge Tim Kelly to strike it from the record and instruct jurors to ignore it. 

Nonetheless, the jury saw shades of the world Tarrio operated in and the people he engaged with. That message was sent to Tarrio after the first breach on Jan. 6 and after he had already sent out the message: “make no mistake…we did this.” 

In that same private elders chat, Cannon asked Tarrio: “Are we a militia yet?”

“Yup,” Tarrio replied in a voice note.

Where early weeks of the trial were aimed at establishing the Proud Boys patterns of behavior that trended towards violence at political rallies before the 6th or tracking things like the group’s internal rancor as Trump’s bid to stay in power failed in the courts, more recently, it has been the prosecution’s “tools” theory that has dominated the jury’s attention. 

One of those many alleged “tools” utilized by the Proud Boys on Jan. 6 was former police officer and Proud Boy Nathaniel Tuck of Florida. Tuck appeared in a video after the breach, taking what seems to be a celebratory group photo outside of the Capitol. He appears with defendants Biggs and Nordean and other Proud Boys who marched from the Washington Monument that morning to the Capitol that afternoon, per a previous discussion had among members of the Proud Boys Ministry of Self Defense. 

Tuck makes what appears to be a Nazi “heil” gesture in the footage

The prosecution, as it turned out, didn’t focus on that gesture, letting the images speak for themselves. Instead, the jury’s attention was brought to Tuck’s greater alleged conduct and his association with the defendants on trial as one of many “tools.” 

The defense has rejected this legal theory vehemently, arguing, in short, that it is a roundabout way of achieving a conviction when evidence of a hard and fast plan to stop the certification is too attenuated. But as other sedition trials of Jan. 6 have shown, like the first Oath Keepers case with that ringleader Elmer Stewart Rhodes, the evidence of an explicit plan is not necessarily needed for a jury to convict on seditious conspiracy. 

The government’s argument that Proud Boys incited the mob to join their revolt may be sufficient. On Monday, when witness Travis Nugent is expected to testify for the defense, he is largely expected to tell the jury that Proud Boys had no plan at all. 

Persuasive evidence of a concrete plan or not, the prosecution has continually pointed to the disruptive element that Proud Boys brought to each site they marched through on Jan. 6. Police testified on at least two occasions in the last several weeks that before Proud Boys showed up, people were calm. It was the Proud Boys who got edgy. It was the Proud Boys who were ready for a fight and had been for months, the government contends. 

To that end, when Tarrio and “Chris Cannon PB” were texting about the deteriorating scene at the Capitol in the Proud Boys elder chat and Tarrio appeared to take credit for it, prosecutors showed jurors simultaneous surveillance video footage that shows defendant Joe Biggs, with  “tools” like Nate Tuck or others like Arthur Jackman and Eddie George. Prosecutors also presented footage of Biggs reaching the Senate chamber with some of these same men in tow. Jurors saw evidence of how Biggs was part of a breach on both the east and west sides of the Capitol, and how he entered the building twice that day. Other evidence, like call logs extracted from the defendants’ phones, showed Tarrio’s phone connecting to Biggs for just under a minute moments before the national ringleader posted “1776” on Parler. It was also around this time that some of the worst violence of the day by rioters against police would explode. 

As for Ethan Nordean, the government relied on extensive frame-by-frame footage from the very front lines of the mob where Nordean so often appeared with Biggs. Nordean was also seen often striking a defiant posture toward police that morning. Before noon, as he marched toward the Capitol he used a bullhorn and told anyone within earshot how police had “just took our boy in” and that police “gotta prove your shit to us now” or the people would “do your goddamn job for you.”

“Our boy” was Tarrio. Tarrio had been arrested two days before for the burning of a Black Lives Matter banner at a historic church in the district in December. 

Nordean’s rantings whipped people up, FBI agent Nicole Miller explained during testimony. Jeremy Bertino had said too that the “normies” looked at Proud Boys like “superheroes” and would follow wherever they went if they led the way. 

By the time Nordean, Biggs, and Rehl got to the Capitol on Jan. 6, Nordean had already told those gathered around him “We represent 1776” and urged people to support and defend the Constitution against enemies foreign and domestic. 

“Let us remind those who have forgotten what that means,” Nordean said. 

On the way to the Capitol, Nordean at one point brought the marching group to a halt and was overheard in footage saying they needed to wait so they could “link up with Alex Jones.” Roughly 15 minutes later and moments before reaching the Capital, Nordean was overheard in another recording saying, “we have a plan. They can adjust.” 

Prosecutors used video from the initial breaches to show Nordean and Biggs standing along metal inaugural fencing in a thick crowd. Both men were touching the fencing, at the very least, in the moments before the fencing was rocked back and forth and ripped up from its embedded posts in the concrete.

Other surveillance footage played for jurors has depicted defendant Zachary Rehl, a Proud Boy chapter president, entering through the same door Biggs had come in at one point. At an earlier point, when he is outside, he is in proximity to Dominic Pezzola and it was around this time that Pezzola was, prosecutors allege, forcefully stealing a police riot shield away from a clearly outnumbered officer. 

Pezzola would use that shield to smash open a window to the senate wing hallway. CCTV footage shows Pezzola later standing on the other side of that window, appearing to look through it for several moments while using what prosecutors and one FBI agent said appeared to be a radio. Pezzola’s defense attorney described his client repeatedly as a “lost puppy dog.” An FBI case agent testified that Pezzola looked like he was searching for someone or something before taking off toward the Capitol crypt. The same agent testified that Rehl would eventually go to the crypt too followed by “tools” of the conspiracy like Proud Boy Isaiah Giddings and others. The same agent said it was Rehl’s voice she was able to identify saying “fuck it, storm the Capitol” in a video from earlier that morning filmed at the Peace Circle just moments before a crowd surged past police barricades there. 

Many of the alleged “tools” tapped by the Proud Boys are awaiting trials all their own. Tuck, for example, has pleaded not guilty to a number of charges including obstruction. A motion hearing for Tuck and several alleged “tools” including Arthur Jackman, Paul Rae, Edward George, and Tuck’s own father, fellow Florida police officer, Kevin Tuck was continued from February to May 5. 

The Proud Boys have, by and large, defended themselves as a fraternity-style drinking club with unserious political aims or interests. They have worked to paint themselves as rough-and-tumble “patriots” akin to the Hells Angels who seek out brotherhood and camaraderie where they can mutually defend America ideologically and peacefully from an increasingly hostile woke population. 

But when the insurrection at the Capitol was over, the prosecution argued text messages showed the group’s real intent. Nordean, for one, was livid with Trump after he released a statement a week after the insurrection saying there was “never a justification for violence.” Where once Proud Boys had been jubilant, Nordean was now in the elders chat with Tarrio, expressing his fury. 

“Fucking disgusting, I’m so pissed,” Nordean wrote in one message.

“What a load of shit that whole thing has been. All Trump did was get us to reveal ourselves to the enemy. Basically butt naked and unarmed against this new regime…. Fuck Trump… Fuck that cocksucker,” he added. 

The defendants may likely present a case to the jury in the days ahead that largely relies on varied claims of victimization of one kind or another by Donald Trump, or assertions that the Proud Boys were good old-fashioned protesters made unwilling pawns of the “deep state” and its legion of spooks. 

A few weeks ago, Peter Baker marked the day that the January 6 investigation has taken as long as the time between the burglary to Nixon’s resignation.

I reacted poorly to Baker’s claim to offer perspective; even on past presidential investigations, he has been overly credulous. And there’s really no comparison between Watergate and January 6, particularly if one compares — as Baker does — time-to-resignation under a still-sane Republican party with time-to-indictment in the MAGAt era. The comparison offers no perspective.

But I thought I’d take Baker up on the challenge, because the Watergate investigation offers a worthwhile way to demonstrate several of the reasons why the January 6 investigation is so much harder. (I plan to make running updates of this post because I expect feedback, particularly from people who know the Watergate investigation better than me, will help me fine tune this explanation.)

Same day arrests

In Watergate, the burglars were arrested in the act of breaking into the DNC headquarters.

On January 6, the cops tried to (and in a relative handful of cases, did) arrest people onsite. But this is the challenge they faced when they tried: Every attempted arrest required multiple officers to focus on one individual rather than the mob of thousands poised to invade the Capitol; every arrest was a diversion from the effort to defend the Capitol, Mike Pence, and members of Congress, with a woefully inadequate force.

In the case pictured above, the cops made a tactical decision to let Garret Miller go. After assuring the cops he only wanted to go home, just 33 minutes later, Miller burst through the East door with the rest of the mob.

There wasn’t a great delay in arrests of January 6 rioters, though. Nicholas Ochs, the first Proud Boy arrested, was arrested on January 7 when his flight home from DC landed in Hawaii.

Q-Shaman Jacob Chansley was arrested on January 8. The first person who would be convicted of a felony by a jury, Guy Reffitt, was arrested on January 15 (his son had tipped the FBI about him before the attack). The first person known to later enter into a cooperation agreement, Jon Schaffer, was arrested on January 17. Miller, pictured above, was rearrested January 20. VIP Stop the Steal associates Brandon Straka and Anthime “Baked Alaska” Gionet — the former of whom did provide and the latter of whom likely provided useful information on organizers to earn misdeamenor pleas — were arrested on January 25 and January 17, respectively. Joe Biggs — now on trial for sedition and an utterly critical pivot between the crime scene and those who coordinated with Trump — was arrested January 20, the same day that Joe Biden would, under tight security, be sworn in as President, the same day Steve Bannon’s last minute pardon was announced.

Kelly Meggs, the Oath keeper who facilitated cooperation among three militias who was convicted with Stewart Rhodes of sedition last November, was arrested on an already growing conspiracy indictment on February 19.

In the first month then, DOJ had already taken steps in an investigation implicating those who worked with Trump. The table below includes the arrests of some of the witnesses who will have an impact on an eventual Trump prosecution. There are others that I suspect are really important, but their role is not yet public.

Trial delays

The Watergate burglars didn’t go to trial right away. They were first indicted on September 15, 1972, 90 days after their arrest. Those who didn’t plead out went on trial January 8, 1973, 205 days after their arrest. Steps that John Sirica took during that trial — most notably, refusing to let the burglars take the fall and reading James McCord’s confession publicly — led directly to the possibility of further investigation. Nixon wouldn’t even commit his key crimes for over two months, in March.

That’s an important reminder, though: the Watergate investigation would have gone nowhere without that trial. That’s unsurprising. That’s how complex investigations in the US work.

Many people don’t understand, though, that there were two major delays before anyone could be brought to trial for January 6. First, COVID protocols had created a backlog of trials for people who were already in pretrial detention and for about 18 months, would limit the number of juries that could be seated. Efforts to keep grand jury members safe created similar backlogs, sometimes for months. In one conspiracy case I followed, prosecutors were ready to supersede several defendants into a conspiracy in April 2021, but did not get grand jury time to do so until September.

To make that bottleneck far, far worse, the nature of the attack and the sheer volume of media evidence about the event led DOJ to decide — in an effort to avoid missing exculpatory evidence that would undermine prosecutions — to make “global production” to all defendants. That required entering into several contracts, finding ways to package up media that started out in a range of different formats, getting special protective orders so one defendant wouldn’t expose personal details of another (though one defendant is or was under investigation for doing just that), then working with the public defenders’ office to effectively create a mirror of this system so prosecutors would have no access to defense filings. It was an incredibly complex process necessitated by the thing — the sheer amount of evidence from the crime scene — that has made it possible to prosecute so many of the crime scene culprits.

Here’s one of the memos DOJ issued to update the status of this process, one of the last global updates. Even at that point over a year after the attack, DOJ was just starting to move forward in a few limited cases by filling in what remained of discovery.

The first felony trial coming out of January 6 was that of Guy Reffitt, which started on March 3, 2022, a full 420 days after the event. Bringing him to trial that was made easier — possible even — because Reffitt never went into the Capitol itself, so didn’t have to wait until all global discovery was complete, and because there were several witnesses against him, including his own son.

The delays in discovery resulted in delays in plea deals too, as most defense attorneys believed they needed to wait until they had seen all of the discovery to make sure they advised their client appropriately.

Lots of people thought this process was unnecessary. But the decision to do it was utterly vindicated the other day, as DOJ started responding to defendants claiming that Tucker Carlson had found video that somehow proved their innocence. As I noted, prosecutors were able to point to the video shown by Tucker Carlson that he said vindicated Jacob Chansley and describe specifically when an unrelated defendant, Dominic Pezzola, had gotten what was effectively Chansley’s discovery.

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

You may think the thirteen month delay for discovery was a waste of time. But it just prevented Tucker Carlson from being able to upend hundreds of prosecutions.

Obviously, most of the trials that have occurred in the last year won’t directly lead to Trump. Some will. I’ve said for 22 months that I think the Proud Boy trial is critical — and that won’t go to the jury for another two or three weeks yet. There are a number of steps that, I suspect, DOJ has been holding on pending the results of that trial, because so much else rides on it.

The Stewart Rhodes trial was likely helpful. I’ve suggested DOJ may use Danny Rodriguez as a way to tie Trump and Rudy Giuliani to the near-murder of Michael Fanone on an aid-and-abet theory. And there are a few more sleeper cases that seem to have greater significance than what went on at the Capitol that day.

Update: On May 4, 2023, a jury found four of the five Proud Boy leaders guilty of sedition. This trial was an important precursor for other investigative steps.

The legal uncertainty

In the Nixon case, there were fairly well established crimes: burglary, and obstruction of a criminal investigation.

I won’t say too much on this point, because I already have. But in this case, prosecutors were (and undoubtedly still are) trying to apply existing statute to an unprecedented event. One law they’ve used with a lot of the rioters — civil disorder — was already being appealed elsewhere in the country when prosecutors started applying to the January 6. Since then its legal certainty has been all-but solidified.

Far more importantly, the way prosecutors have applied obstruction of an official proceeding, 18 USC 1512(c)(2), has been challenged (starting with Garret Miller–the guy in the aborted arrest photo above) for over a year. That’s precisely the crime with which the January 6 Committee believes Trump should be charged (I advocated the same before their investigation even started in earnest); but I’m not sure whether Jack Smith will wait until the appeals on the law get resolved.

Still, DOJ has spent a great deal of time already trying to defend the legal approach they’ve used with the investigation.

Update: On April 7, the DC Circuit reversed Carl Nichols, holding that 18 USC 1512(c)(2) does not require a documentary component. That opinion raised new questions about the meaning of “corrupt purpose” under the statute. The Circuit rejected Fischer’s request for a rehearing, clearing the possibility of an appeal to SCOTUS. On May 11, the DC Circuit heard Thomas Robertson’s challenge to the same statute. Its decision in that case will almost certainly be the first DC Circuit ruling on “corrupt purpose” under the statute.

The insider scoop

For all the delays in setting up the January 6 Committee, it (and an earlier Senate Judiciary Committee inquiry into Jeffrey Clark’s efforts to undermine the vote) got started more quickly than Sam Ervin’s committee, which first started 11 months after the burglary.

Yet it only took Ervin’s Senate investigators about two months to discover their important insider, whose testimony would provide critical to both Congressional and criminal investigators. On July 13, 1973, Alexander Butterfield first revealed the existence of the White House taping system.

For all the January 6 Committee’s great work, it wasn’t until her third interview, on May 17, 2022, before Cassidy Hutchinson began to reveal more details of Trump’s unwillingness to take steps against his supporters chanting “Hang Mike Pence.” Even Hutchinson’s remarkable public testimony on June 28, 2022, when she described Trump demanding that his supporters be allowed to enter the Ellipse rally with the weapons Secret Service knew them to be carrying, is not known to have provided the kind of Rosetta stone to the conspiracy that disclosure of Nixon’s White House taping system did. In later testimony, Hutchinson provided key details about a cover-up. And her testimony provided leverage for first J6C and then, in at least two appearances, grand jury testimony from Pat Philbin and Pat Cipollone, the latter appearance of which came with an Executive Privilege waiver on December 2, 2022, 23 months after the attack.

Cell-xploitation

This brings us to the biggest difference in the timeline. Once the Senate and prosecutors learned that Nixon had effectively wiretapped himself, it turned the investigation into a fight over access to those materials.

The parts of the draft Nixon indictment that have been released describe a fairly narrow conspiracy. The proof against Nixon would have comprised, in significant part:

• The report John Dean did disclaiming a tie to the break-in
• Proof of payments to Howard Hunt
• White House recordings, primarily from several days in March 1973, proving that Nixon had the payments arranged

That is, in addition to the James McCord confession and John Dean’s cooperation, any charges against Nixon relied on recordings Nixon himself had made, the import of which were made all the more salient with the disclosure of the 18-minute gap.

One thing likely made the January 6 prosecution easier: The sheer amount of data available to prosecutors using subpoenas. We have yet to see any of that with regards to organizers (though we know that Denver Riggelman, with far weaker subpoena power, was able to do a detailed map of ties between Trump, organizers, and mobsters).

There will undoubtedly be a great deal of evidence obtained from cloud companies. The only hint of this process we know about yet involves the emails from Jeffrey Clark, Ken Klukowski, John Eastman, and one other person, who is not a lawyer. DOJ had obtained emails from them with a warrant by last May. They have undoubtedly done the same for dozens of other subjects (beyond those arrested from the crime scene, where they have done so as well), but we won’t know about it until we see it in indictments.

But even that is not always easy. DOJ has spent seven months so far getting Peter Navarro to turn over emails from his Proton Mail account covered by the Presidential Records Act. Judge Colleen Kollar-Kotelly just issued an order requiring him to turn the emails over, but it’s not clear whether he’ll further obstruct this effort to simply enforce his normal record-keeping obligations.

But one challenge that didn’t exist fifty years ago makes prosecutors jobs much harder: the need to obtain and exploit individual cell phones to obtain encrypted communications — things like Signal and Telegram chats — not otherwise available. In Enrique Tarrio’s case, simply breaking into the phone took most of a year. In Rudy Giuliani’s case (his phones were first obtained in the Ukraine investigation starting on Lisa Monaco’s first day on the job, but the results would be available with a separate warrant here), it took a nine month Special Master review. In Scott Perry’s case, his speech and debate claims will be appealed to SCOTUS. The table below shows whose phones we know to have been obtained, including how long it took to exploit the phones to the extent that became public (It does not show known cloud content obtained; much of that remains secret.)

The point being, even for the Proud Boys and Oath Keeper cases, you had to get one phone, use it to get probable cause on the next guy, then get his phone to use it to get probable cause on the next guy. This process is very obviously at the stage where both Alex Jones and Roger Stone would be in prosecutors’ sights, as well as much of the fake elector plot. But that’s still several steps away from people like Mark Meadows, who would necessarily be involved in any Trump prosecution.

Privilege

When DOJ subpoenaed the two Pats last summer, multiple media outlets reported that subpoenaing the White House counsels was particularly “aggressive.”

Two top lawyers who worked in the White House under former President Donald Trump have been subpoenaed to appear before a federal grand jury investigating the events leading up to the Jan. 6, 2021, attack on the Capitol, people familiar with the matter said, in the latest sign that the Justice Department’s probe is entering a more aggressive phase.

Mr. Trump’s White House counsel Pat Cipollone and his deputy Pat Philbin received subpoenas in recent days seeking documents and testimony, the people said. [my emphasis]

But as coverage of, first, Mike Pence’s two aides and, then, the two Pats being compelled to testify about topics Trump had claim was privileged noted, it’s not actually a new or particularly aggressive thing to ask White House counsels to testify. Indeed, John Dean’s cooperation — the most important part of holding Nixon accountable — arose after he had gotten himself deeper and deeper into Nixon’s cover-up.

And in spite of the Nixon precedent that said there were limits to Executive Privilege, and in spite of the DC Circuit ruling that the import of investigation January 6 overcame Trump’s Executive Privilege claims, even with Congress, Trump has used — and DOJ has been obligated to navigate — a series of privilege claims to delay the investigation.

As I’ve noted, there are close to thirty key witnesses or subjects whose attorney-client claims have to be carefully addressed to avoid blowing both that case and those of any downstream investigation.

In the case of Scott Perry, DOJ has spent six months trying to get into his phone. That delay is not a sign of lassitude. On the contrary, it’s a sign they’re including subjects who very rarely get investigated in the investigation.

Update: On April 21 and 22, seven-plus months after DOJ seized his phone (which is often how long exploitation takes), Boris Epshteyn spent two days interviewing with Jack Smith’s prosecutors though not — at least by description — appearing before the grand jury. He played a key role in both January 6 and the stolen documents case.

Cooperating witnesses

According to this timeline, John Dean started cooperating on April 6, 1973, almost ten months after the arrest of the burglars, though just a few weeks after the day of Nixon’s crimes as alleged in the draft indictment.

As noted on this table, there were people who entered into cooperation agreements more quickly than that, but it’s not clear who of them will help prosecute those closer to Trump. As I keep noting, I’m really dubious of the value of Brandon Straka’s cooperation.

There are maybe 30 to 35 known known cooperators in January 6, but most only cooperated against their buddies, and most of those prosecutions didn’t much build prosecutions related to Trump.

This table only includes a few of the cooperating witnesses — the first (Schaffer, the nature of whose cooperation is still totally obscure), the dubious cooperation of Straka and, potentially, Gionet, the most important of at least five Proud Boy cooperators, Jeremy Bertino, and the most important of at least eight Oath Keeper cooperators, Joshua James.

James, along with a few of the other Oath Keeper cooperators, might help prosecute Roger Stone. But there is no one on this list who has the goods on Trump, like John Dean did. No one even close.

That said, we wouldn’t necessarily know if someone closer to Trump were cooperating. Even some people who are secondary cooperators remain entirely obscure, both that they are cooperating, and the extent of their knowledge. I suspect several people are cooperating — I even have specific people in mind, based on other details. But we won’t know anytime soon if someone has flipped on Donald Trump.

And given the ferociousness of his supporters and the aggressiveness of Trump’s obstruction that’s a good thing.

Update, May 26: I’ve updated the table below to reflect the Oath Keeper sentences and the Proud Boy verdict.

When we left the mainstream Trump press corps on Friday afternoon, they were all focused on the decision by Beryl Howell to rule that some of Evan Corcoran’s testimony in the stolen document case was crime-fraud excepted. Sure, there were journalists using wildly exaggerated descriptions for the uniqueness or surprise of the development. But, on Friday, reporters covering Trump’s legal woes were providing factual descriptions of actual newsworthy developments.

At the time, there was a general awareness that an indictment from Alvin Bragg may come next week, but the focus was the stolen documents investigation, in part because some journalists appear to believe that the crime-fraud ruling was some new sign that Jack Smith believed a crime had been committed.

Then, on Saturday morning, on his failing social media platform, the former President tweeted out incitement that included the following, in all caps:

• An unsubstantiated claim about illegal leaks probably based on Fox News reporting about efforts to prepare for potential violence as a response to a Trump indictment next week
• An attack on Alvin Bragg’s record on crime
• A claim Bragg is funded by George Soros, the kind of coded antisemitism Trump is including in virtually all his communications these days
• An assertion that he would be charged on something that “numerous other prosecutors!” had debunked as a fairy tale
• An overstatement of the degree to which he is leading in polls and an admission that he is the “former” President
• A day, Tuesday, when he would be “arrested”
• A call to “protest,” invoking one of the same cries used to incite a coup attempt on January 6, “take our country back”

The response was almost instantaneous, with one after another journalist screen-capping the tweet in its entirety, some like Kyle Cheney adding no other commentary other than, “🚨 Trumps says he expects to be arrested Tuesday,” with the siren adding to its inflammatory nature. Jonathan Lemire repeated select newsworthy bits — while still including the full screen cap — without mentioning the coded slur on Soros or labeling the entire tweet as obvious incitement; Lemire parroted Trump’s all caps for the purported timing and quoted the incendiary line also associated with January 6.

NEW: Trump is suggesting that he will be ARRESTED ON TUESDAY due to Manhattan DA probe

This is historic: he would be the first former president to be indicted

He urges his supporters to “Protest, take our nation back!”

The absolutely most hysterical tweet magnifying Trump’s words unfiltered came from Jared Holt, a supposed expert on radicalization online, who introduced Trump’s full tweet onto Twitter (where Trump has not tweeted under his own ID since being permitted back on) with the following:

It will be hard to think of a bigger tech moderation failure than if Trump uses the platforms he’s been allowed back onto (FB, YouTube, Twitter) to incite protests again.

As of this morning, Holt’s tweet, along with the screen cap of Trump’s tweet unfiltered, had garnered 230,000 views on Twitter, over 300 RTs and almost 1,700 likes. Lemire’s had garnered 300 quote tweets, almost 600 RTs, over 2,000 likes, and 1.3M views. Cheney’s had garnered 770 quote tweets, 1,200 RTs, 7,400 likes, and 2.6M views.

By publishing such an inflammatory tweet on Truth Social, Trump was rightly calculating that even people like Holt would help to make his unfiltered words go viral on Twitter, as Trump has consistently done during the period when he still remained banned on Twitter.

It’s like Pavlov’s dogs, pure reflexive behavior at this point: The more incendiary Trump’s tweets, the more quickly journalists rush to disseminate them unfiltered on Twitter.

Remarkably, neither Lemire nor Cheney noted the import of the fact that a habitual liar like Trump was only claiming that he expected to be arrested Tuesday, not that he knew he would be.

In its report on the tweet, NYT noted, even in the subhead, that the timing was unclear, but given that at least one more witness is expected to testify on Monday, a Tuesday arrest is unlikely. It further described that Trump’s team was already in discussions about how to minimize the kind of showy arrest Trump was promising on Truth Social. NYT went on to report how Trump’s team simply guessed the date of his arrest.

His indictment by a Manhattan grand jury is expected, but its timing is unclear.

[snip]

Two hours later, a spokesman issued a statement saying that Mr. Trump had not written his post with direct knowledge of the timing of any arrest,

[snip]

Prosecutors working for Mr. Bragg have signaled that an indictment of Mr. Trump could be imminent. But they have not told Mr. Trump’s lawyers when the charges — expected to stem from a 2016 hush money payment to a porn star — would be sought or an arrest made, people with knowledge of the matter said. At least one more witness is expected to testify in front of the grand jury, which could delay an indictment, the people said.

One of the people said that even if the grand jury were to vote to indict the former president on Monday, a Tuesday surrender was unlikely, given the need to arrange timing, travel and other logistics.

The statement from Mr. Trump’s spokesman did not explain how he had landed on Tuesday as an arrest date. One person with knowledge of the matter said that Mr. Trump’s advisers had guessed that it could happen around then, and that someone might have relayed that to the former president.

A lawyer for Mr. Trump, Susan R. Necheles, said that his post had been based on news reports,

CNN, including Kaitlan Collins, who was among the first to help disseminate this incendiary tweet, later reported on the legal discussions going on inside Trump’s camp.

Trump’s defense team is expected to be notified following any possible indictment and then they would engage in negotiations for surrender and an initial appearance.

Another witness is expected to testify Monday before the grand jury investigating the hush money payments, according to a source familiar with the investigation. It is not clear whether this would be the final witness before it votes on a possible indictment.

Trump’s team has said repeatedly that he will not accept an invitation to testify before the grand jury. But multiple sources familiar with his legal team’s thinking says that if there is an indictment, he would negotiate an agreed upon surrender date with the district attorney’s office.

Trump’s team has been huddled all week planning for various scenarios, including Trump traveling to New York as well as having a remote hearing where he stays at Mar-a-Lago, according to sources familiar with the meetings.

Some members of his legal team are advising Trump to ask for a remote appearance for security reasons should an indictment occur but it is unclear if he would agree to that as he has also discussed with his team wanting to give a statement at the courthouse, sources said.

But before it got to those details, CNN described that the tweet was just a political ploy based off a guess about timing.

The former president has been agitating for his team to get his base riled up and believes that an indictment would help him politically, multiple people briefed on the matter told CNN.

[snip]

Joe Tacopina, an attorney for Trump, later said the former president had based his claims on press reports.

“No one tells us anything which is very frustrating. President Trump is basing his response on press reports,” Tacopina said in a statement to CNN.

In other words, the most newsworthy detail in Trump’s tweet (beyond the incitement) — the day he would be charged — was just made up, a guess based off the same information all the rest of us have. It was nevertheless treated as newsworthy by a slew of journalists needing an excuse to disseminate unfiltered incendiary speech on Twitter. And no one has since gone back to amend their original tweets to note that Trump’s claims to know the date of his arrest were a lie.

Trump’s team simply guessed what day he’ll be charged so as to make a call to fight newsworthy enough for kneejerk journalists to help it go viral for him.

It worked.

It works every single fucking time Trump does this.

Every. Single. Time.

And it’s not just the fact that a bunch of journalists served as willing data mules for Trump’s incendiary tweet, bringing it onto Twitter for him and helping it to go viral in unfiltered form.

It’s the other effect the tweet had on reporting about Trump.

First, everyone completely dropped the significant development in a case that even a number of diehard Republicans think has real gravity, Trump’s refusal to return all the classified documents he stole. That story — a burning story late into Friday — utterly disappeared by Saturday morning. Trump is so good at playing the media that he can effectively just dictate what even CNN and MSNBC will cover. And his tweet managed to make that more damaging investigation — an investigation led by a white man rather than a Black one, and so harder to use to mobilize Trump’s most racist followers — completely disappear from coverage. Journalists who had broken key details about the crime-fraud ruling Friday were instead asked to cover Trump’s tweet on the cable shows on Saturday.

And it wasn’t just cable coverage that Trump’s incendiary tweet managed to dictate. One after another politician — Kevin McCarthy, Mike Pence, Elise Stefanik (who released then deleted multiple drafts before hers was sufficiently dripping in obsequious propaganda) — was forced to comment on the made up news that Trump has a date when he’ll be indicted. Even poor Asa Hutchinson, who was trying hard to launch a Presidential run that didn’t define itself entirely in terms of Trump, was forced to answer multiple questions about Trump’s tweet.

In other words, by releasing the tweet, Trump not only made it the sole focus of cable programming, but made it the leading political question of the day. He made the presidential race about him again, exclusively about him. And in the case of McCarthy and Stefanik — both of whom cling to power by ceaselessly performing their obeisance to Trump — made it a matter of loyalty, a political litmus test that Trump supporters and opponents alike would be required to publicly adhere to.

Finally, all this was done without any mention of the actual facts of the case. All this was done in a way guaranteed to short-circuit rational thought — that’s the point.

To be clear, I don’t know all that many people who are sure this is going to be a substantive indictment, and there are real questions about how it is not time-barred. Perhaps Bragg will surprise us, but even many lefties are skeptical about the legal soundness and wisdom of this indictment.

But the substance of it stems from Trump fucking a sex worker.

He fucked a sex worker then paid her to cover it up. And then, in his efforts to cover that up, Trump engaged in some dodgy corporate accounting. There may be other exacerbating factors, like witness intimidation. But this is about trying to cover up the fact that he fucked a sex worker so it wouldn’t harm his chances of becoming President.

This case involves a crime for which, under Jeff Sessions, SDNY prosecuted Trump’s personal lawyer, Michael Cohen. One reason Trump wasn’t prosecuted as a result is that Bill Barr interfered; Barr even tried to force SDNY to reverse Cohen’s prosecution. And when Cohen went to jail because he refused to cover up Trump’s efforts to cover up fucking a sex worker, Trump cut him off, making him a pariah. Trump’s tweet falsely claimed that multiple prosecutors had deemed this case bullshit when instead he means his own Attorney General engaged in breathtaking corruption to protect him from it.

We don’t know what the indictment includes. But we know it involves fucking a sex worker. And all the journalists repeating Kevin McCarthy’s bullshit comments about investigating this investigation, or Mike Pence’s comments about how measly an indictment this would be, are not making them go on the record about whether they think voters should know if someone is spending significant money — several times what most Trump supporters make in a year — to cover up that they fucked a sex worker. Does Mike Pence, that god-fearing Christian, think a man who paid six figures then engaged in financial fraud to cover up that he fucked a sex worker should be President? Let’s ask him.

That’s not happening, in significant part because Trump has gotten journalists to shed all rationality when reporting on this story. The point is to make this about emotion, not facts, and journalists’ immediate instincts accommodated that.

Because Trump went on offensive, the substance of the indictment — however flimsy or not — has been largely absent from any reporting on the case.

Trump has these journalists trained to act reactively, without taking the time first to figure out whether he was again making shit up (as he was in this tweet). He has these journalists trained to mindlessly help him disseminate antisemitic incitement on platforms he’s not a part of, usually without commentary identifying that’s what he’s doing. Trump is so good at exploiting journalists who know better that he has made them participants in his incitement.

And it could well get people killed.

Updated: Added the circulation numbers for the three tweets disseminating Trump’s incitement.

[NB: check the byline, thanks. /~Rayne]

“I cried all the way to the bank.”

– attributed to performer Liberace

I’ve run the gamut from fuming to furious this past week. I didn’t have a dime in Silicon Valley Bank, but its failure royally pissed me off.

Did we not learn anything from the 2008 crash? Or the decade-long savings and loan crises?

For that matter, have we not learned to stop listening to millionaires and billionaires who will not go hungry when their investments fail though Mom and Pop and their tiny businesses will?

~ 3 ~

In March 2018, I wrote a letter to both of my senators asking them to vote No on S.2155 Economic Growth, Regulatory Relief, and Consumer Protection Act, explaining,

— While smaller community banks may complain about the cost of compliance with Dodd-Frank regulations, the costs may be entirely appropriate to a safe, secure banking system. We cannot expect safety and security at no cost;
— Too Big To Fail (TBTF) banks have been allowed to accrue economies of scale placing them at an advantage over smaller competitors. The balance should be in the amount of collateral TBTF banks are required to maintain to offset their much larger risk. It is not irrational to expect a trade off of cost savings in exchange for increased security;
— The bill backpedals on protections against racism in lending by preventing the Consumer Financial Protection Bureau from collecting data about lending demographics;
— And the Congressional Budget Office’s score is dismal:
•  The bill would increase federal deficits by $671 million over the 2018-2027 period
•  And “would increase the likelihood that a large financial firm with assets of between $100 billion and $250 billion would fail.”

And yet both of my senators voted for the bill. Sen. Gary Peters replied with a pathetic explanation that he was trying to help community banks.

Community. Banks.

Like Silicon fucking Valley’s bank, which grew to be Too Big To Fail.

Specifically, this is what he wrote:

   Community banks and credit unions have made great contributions to our economic growth, and in turn, we must make sure they can continue reinvesting in our economy. Our financial regulations must protect consumers and ensure that community banks, credit unions, and other financial institutions can continue to safely provide the mortgages, small business loans, and auto financing that make our economy work for Michigan families. Big banks and Wall Street caused the financial crisis – not Michigan’s credit unions and community banks. Our state’s credit unions and community banks kept Michigan families afloat during the financial crisis by providing loans when big banks would not. We should not have a “one size fits all” approach to financial regulation.

Our economy is healthier and more stable when our financial system is diversified and not concentrated in a handful of the biggest multinational banks. Local community banks and credit unions are having difficulty competing with large, multinational banks headquartered out of state and overseas. This has resulted in increased consolidation and growth of the largest financial institutions while too many community banks and credit unions are being forced to close their doors. I am committed to ensuring that these local institutions can continue to provide affordable, competitive, high-quality financial services to Michigan’s hardworking families and businesses.

Yeah? Well the lack of diversity still happened and now the small banks and credit unions which were supposed to be protected are going to feel the pressure from yet another TBTF bank failure which slipped through the crack created by rolling back regulations.

I hate feeling like Cassandra. The only comfort I have is that I’m not alone.

Max Kennerly shared what Sen. Elizabeth Warren was surely thinking when she wrote about SVB this past week:

That. We fucking told you so. When are legislators going to listen?

And by legislators, I mean any of these Democrats who are still in office who voted for S.2155:

Democratic Senators (13 of these 18 are still in office):

Democratic House Reps:

If any of these are your senators or representatives, feel free to call them at (202) 224-3121 and tell them they need to undo the damage S.2155 did in 2018, and re-assess Federal Deposit Insurance Corporation (FDIC) and National Credit Union Administration (NCUA) insurance and funding.

~ 2 ~

In a nutshell, this is what was wrong at Silicon Valley Bank:

•  SVB had many high-value depositors whose accounts exceeded FDIC’s $250,000 threshold; 97% of funds deposited were uninsured;

•  The bank leaned on borrowers to deposit all their cash with SVB if they were to be approved for a loan, leaving depositors greatly exposed to SVB’s failure;

•  Using depositors’ cash, SVB bought excessively into long-term bonds while interest rates were low; when rates increased and more rapidly than anticipated, SVB tried to shift its distribution, but without adequately ensuring enough cash to cover withdrawals;

•  SVB’s Chief Risk Officer left and no replacement was named between April 2022-January 2023; the absence of a CRO had not been widely known. A new CRO was named in January 2023, but long after volatility in the tech sector had increased and thousands of tech employees had been laid off.

Ultimately, the bank was extremely vulnerable to the trash talk among techbros who hung with Peter Thiel who pulled his cash and advocated his peeps do the same. They read a newsletter which said SVB was technically insolvent, got their panties in a twist and set off a bank run rather than carefully doing more research as to where SVB had distributed its portfolio and working with the bank to manage rejiggering SVB’s portfolio distribution.

These same depositors could have been asking questions about the CRO’s replacement last summer without raising a ruckus and starting a run, but no. They could have been asking about adequate stress testing last year, in tandem with the Federal Reserve’s moves to increase interest rates between July and December 2022, but no. Apparently they only talked to SVB management when they needed loans.

The capper was that SVB lobbied for weakening of Dodd-Frank Act regulations with passage of S.2155. None of these big bucks depositors batted an eye at that; some were surely donating cash to right-wing politicians who were bashing the Biden administration about interest rates.

One thing legislators could address is the nature of some of the deposits and the limits of FDIC insurance. If some of the depositors are businesses with sizable cash deposits needed for operating funds like payroll, it may be worth considering establishment of a particular kind of FDIC insurance on these accounts above and beyond $250,000.

Imagine you’re a general manager and owner of a technology business. Average pay of technology workers in Silicon Valley is $134,000/year, or $11,166/month. If you have 100 employees, your need for cash to cover payroll will exceed $1 million.

Silicon Valley’s technology businesses can be small shops of one or two people to several thousand – they all still need to cover payroll each month.

Are we really going to worry about making whole people who should be smart enough to know they’ve exceeded FDIC insurance limit with their deposits, people who are rather well off by comparison with the rest of the U.S.? Nope, especially not entrepreneurs’ personal deposits since taking risk is what entrepreneurs do, it’s on them.

But protecting the lower wage workers and the economy at large? Yes, we should consider this. In the past week I’ve seen small businesses scrambling with fire sales of product to raise cash for operations after losing money at SVB. There’s at least one Broadway production which may have been canceled altogether because its producer was a depositor at SVB. In both of these cases it’s workers whose salaries are much less than $100,000/year who are going to bear the brunt of this kind of failure.

It shouldn’t be that difficult to regulate a particular kind of account dedicated solely to payroll which the FDIC would insure for the value of one month’s cash equal to the highest average monthly payroll in the previous 12 months.

This would blunt the drive for businesses and employees alike to pull cash out of a bank, heading off a potential run. Insured banks should likewise be obligated to ensure there was cash on hand matching the anticipated one-month payroll needs, in addition to cash required to meet stress tests the Dodd-Frank Act required.

Some legislators could make this happen in a heart beat if they were really concerned about the economy now and voters in 2024.

~ 1 ~

I’m sure there are folks who aren’t going to like this third of three things but we have an immigrant problem.

Nope, not the folks seeking asylum, desperately fleeing with their families to the U.S. leaving violence and economic hardship behind, who take jobs Americans don’t want and work doggedly to support their families here and abroad.

We have a problem with immigrants like Elon Musk who think they are their gods’ gift to mankind, who believe their money makes them invincible and unaccountable, who are able to thumb their noses at laws in ways the rest of us can’t, feeling immune because he was born with a South African emerald mine in his mouth. Musk has managed to completely trash a critical communications platform used by most news media and marginalized populations, subverting necessary exchange of information important to a functioning democracy – and he did it for little more than the lulz.

We’d long had a problem with immigrant Rupert Murdoch whose News Corp and Fox News have likewise undermined American democracy by promulgating increasing fascism, weaponizing the First Amendment to do so.

Now we have a problem with immigrant cryptofascist who believes they can buy whatever political outcomes they want while ignoring the will of the majority in a democracy. They also believe their wealth doesn’t require them to act prudently for the benefit of the rest of their community and society.

In particular, immigrant Peter Thiel who was key to starting a bank run on SVB, triggering its failure. He pulled all his money out, encouraged his friends to do so, setting off a run which tanked SVB, destroying wealth of persons and businesses in competition with Thiel and his friends.

Fuck everybody else affected by this behavior as far as he’s concerned, because he got his.

If a hostile foreign entity wanted to damage the U.S. economy deeply, they could do *exactly* what Thiel did. Asymmetric warfare would not look different.

As noted on Mastodon, the amount it will cost to make SVB’s depositors whole exceeds the amount the U.S. spends in a year on its food stamp program. There may not be a full federal bailout, with only the FDIC’s insurance covering each depositor to $250,000, but the amount of private as well as public money in play on a single bank should tell us something about our national priorities.

Those national priorities should now include discussion about the kinds of people we’re letting into this democracy, what they are doing to this democracy, and letting them stay in this democracy.

And if we’re going to agree we can’t eject them because they’re wealthy, selfish, and sabotaging the country with their utter disregard for the country which gave them citizenship, then we need to have a serious discussion about disarming them.

Tax them to the hilt so they can’t create a fascist autocracy, for starters – one that looks like Nazi Germany in the 1930s, or an apartheid society like South Africa where both Musk and Thiel once lived.

You may argue this isn’t fair, that American-born billionaires like Robert Mercer and Charles Koch are just as bad at sabotaging democracy.

Okay, great – what are we going to do about that? This country bred their toxicity, and then allowed a new immigrant generation of toxicity to rise because they all had beaucoup money. Meanwhile, hard-working impoverished asylum seekers have been treated like trash.

Let’s deal with this moral and ethical challenge instead of ignoring it.

~ 0 ~

This is an open thread. We’re overdue for a space to dump about topics unrelated to January 6.

In an FBI interview on September 14, 2017, KT McFarland likened Mike Flynn’s transition period interference with Obama policy to Richard Nixon’s Chennault Affair and what she called Reagan’s “purported dealings with Iran to free American hostages.”

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during their transitions as precedent for proactive foreign policy engagements by an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she head what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

To be clear: She was only talking about Flynn’s request of Russia, on December 22, to help stave off a UN vote condemning Israeli illegal settlements. At that point in September 2017, she was still claiming not to remember the calls Flynn made on December 29 to undermine Obama’s sanctions on Russia itself. She wouldn’t unforget those calls until after Flynn pled guilty a month and a half later.

But to the extent that she was happy to acknowledge that Trump’s National Security Advisor — her boss — was undermining US policy, she rationalized it by comparing it to Nixon and Reagan’s efforts to undermine US policy for political gain.

Only, it wasn’t just Flynn involved in undermining Obama’s foreign policy. Records from Mueller’s investigation show the following sequence on December 22:

• 6:02AM: A “senior advisor to a Republican Senator” writes McFarland, cc’ing Flynn and others, warning that the UNSC was “voting to condemn Israeli settlements at 10a.m.” yet Obama was silent
• 8:46AM: Flynn and Kushner speak for four minutes
• 8:53AM: Flynn calls Sergei Kislyak, then calls a representative of the Egyptian government and speaks to him for four minutes
• 8:59AM Flynn speaks to Kislyak for three minutes
• Flynn had “several additional” calls with the representative of the Egyptian government
• Egypt delayed the vote

When the President’s son-in-law read a draft statement from Egypt noting that Abdel Fattah El-Sisi had spoken with Trump that day and had “agreed to lay the groundwork … to drive the establishment of a true peace between the Arabs and the Israelis,” Kushner asked whether they could alter the statement. “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede?” He then falsely claimed, on an email with others like Reince Priebus that, “This happens to be the true fact pattern and better for this to be out there.”

Only it wasn’t the true fact pattern. Flynn had reached out. Not Sisi.

Indeed, this incident was probably the start of Kushner’s Abraham Accords, which in turn probably relates to why the Saudis paid Kushner $2 billion after he left the White House.

And it wasn’t just Flynn involved. Flynn made all these calls from Mar-a-Lago. After Egypt delayed the vote, McFarland bragged that Flynn, “had worked it all day with trump from Mara lago.” [my emphasis]

Trump was involved too.

That December 22 transcript was withheld from those released in 2020. But on a later call with Kislyak — the one where he asked Kislyak to hold off on sanctions — analysts suggested “he may be using a speaker phone.” Had Flynn used a speaker phone on December 22, when he was in Mar-a-Lago with Trump, Trump would have been on that call as well.

The next day, McFarland bragged still some more. She suggested Flynn should leak to the press about,

the crucial role [he] played in working your contacts built up over the decades to get administration ambush Israel headed off. You worked the phones with Japanese Russians Egyptians Spanish etc and reversed a sure defeat for Israel by kerry/Obama/susan rice/samantha power cabal.

In 2016, McFarland wanted Flynn to get credit in the press that he had undermined US policy to help Israel. In 2017, she rationalized doing so because Nixon and Reagan had done similar things in their day.

I raise all this not just because I wonder whether Bill Barr killed the investigation into whether Egypt kept Trump’s campaign alive in September 2016 with a $10 million donation.

I raise all this because NYT, on the verge of Jimmy Carter’s death, has finally revealed who reached out to Iran to get them to hold Americans hostage longer to help Reagan win the White House.

It was former Texas Governor John Connolly.

It was 1980 and Jimmy Carter was in the White House, bedeviled by a hostage crisis in Iran that had paralyzed his presidency and hampered his effort to win a second term. Mr. Carter’s best chance for victory was to free the 52 Americans held captive before Election Day. That was something that Mr. Barnes said his mentor was determined to prevent.

His mentor was John B. Connally Jr., a titan of American politics and former Texas governor who had served three presidents and just lost his own bid for the White House. A former Democrat, Mr. Connally had sought the Republican nomination in 1980 only to be swamped by former Gov. Ronald Reagan of California. Now Mr. Connally resolved to help Mr. Reagan beat Mr. Carter and in the process, Mr. Barnes said, make his own case for becoming secretary of state or defense in a new administration.

What happened next Mr. Barnes has largely kept secret for nearly 43 years. Mr. Connally, he said, took him to one Middle Eastern capital after another that summer, meeting with a host of regional leaders to deliver a blunt message to be passed to Iran: Don’t release the hostages before the election. Mr. Reagan will win and give you a better deal.

Then shortly after returning home, Mr. Barnes said, Mr. Connally reported to William J. Casey, the chairman of Mr. Reagan’s campaign and later director of the Central Intelligence Agency, briefing him about the trip in an airport lounge.

At that moment of history, when Reagan won a victory in part thanks to Connally’s sacrifice of Americans’ freedom, KT McFarland was at the height of her credibility on foreign policy, fresh off going ABD in a PhD program. With the new Republican regime, she worked first for Texas Senator John Tower on the Senate Armed Services Committee, then for Cap Weinberger at DOD.

KT McFarland, who derives any foreign policy credibility to that moment created by an effort to harm US policy for political gain, likened what Trump did to what Reagan had done before.

As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

• Michael Cohen, April 2018
• Rudy Giuliani, January 2022
• John Eastman, March 2022

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?