December 18, 2024 / by 

 

The Soft Bigotry of No Expectations on Trump

WaPo has an editorial out, purporting to compare the policy platforms of Donald Trump and Kamala Harris. Its punchline is that Kamala can lift up politics by going deep on policy, something it admits Trump has not done.

Ms. Harris says she wants to elevate American politics, an imperative that Mr. Trump has again shown little interest in. She therefore has an opportunity to lift up her campaign by going deep on substance.

This comparison lists five policies from Trump, seven from the Vice President, plus the common no taxes on tips:

Trump

  1. Building the border wall
  2. Conducting mass deportations
  3. Raising tariffs
  4. Ending the green energy transition
  5. Challenging traditional alliances while going easy on rivals such as Russian President Vladimir Putin

Common

  • Waiving taxes on tips

Harris

  1. Capping insulin costs
  2. Continuing Biden’s climate plan
  3. Boosting housing supply
  4. Enhancing effective anti-poverty programs such as the child tax credit and the earned-income tax credit
  5. [Protecting] Justice Department independence
  6. Seeking robust protections for reproductive rights
  7. Strengthening U.S. alliances such as NATO

WaPo ignores some obvious policies from Trump, such as his tax cuts for billionaires (though that is alluded to in its observation that Trump would add $5.8 trillion to the nation debt, as compared to $1.2 trillion for Kamala), or his determination to eliminate protections for civil service workers and use DOJ for what he calls revenge but which is in reality forced loyalty. Plus, they count “deport millions” as a stated policy goal of Trump, without noting that he has never provided, never even been asked to provide, details about how he would pay for it, how he’d make up for shortfalls in things like Social Security, how he’d ensure food gets picked and houses get built.

This editorial, on its face, shows that Harris has provided more detail on policy than Trump has.

Yet even though WaPo can identify more policy proposals from Kamala than Trump, it nevertheless holds her accountable for providing more.

Aside from certain specifics — such as building the border wall, conducting mass deportations and raising tariffs — Mr. Trump has never detailed much of an agenda. (His supporters at Project 2025 have prepared a pointedly conservative plan for his second term, though Mr. Trump distanced himself from it after it became a political liability.) As for Ms. Harris, the charitable view is that she has had little time to develop detailed proposals. The less generous take is that she wants to avoid revealing many specifics, lest she alienate one constituency or another. Coasting on “vibes” has worked well for her so far; she has taken a slim lead in national polling, and surveys suggest she has become competitive in all the battleground states.

But the novelty of Ms. Harris’s campaign is wearing thin as an excuse for releasing only the schematics of a platform. She promises “a new way forward,” pitching herself as a change agent, even though she is the sitting vice president and takes credit for the elements of the Biden agenda with which she wants to be associated, such as a cap on seniors’ insulin costs and the administration’s climate plan.

Trump has been running for 21 months; his campaign is more than 90% over. The Vice President has been running 43 days; her campaign still has almost 60% to go.

And yet they’re putting demands on the woman in the race, making no such demand on the white male former President.

The press has gone 21 months without throwing this kind of tantrum with Donald Trump. Given that, this column says more about the failures of journalists to hold Trump accountable than it does any shortcoming on Kamala’s part.

At some point, the traditional media needs to explain why it is so much more rabid about getting policy from Kamala than Trump.

Journalists need to come to grips, publicly, with why they apply this soft bigotry of no expectations to Donald Trump. Is it because they know he’ll deny them access if they make similar demands on him? Is it a (justifiable) fear he’ll sic a violent supporter on them, as he did the other night in Johnstown, with Trump observing, “beautiful, that’s beautiful, that’s alright, that’s okay, no, he’s on our side. We get a little itchy, David, don’t we? No, no, he’s on our side,” as the man was tased? Is it a resignation to the fact that Trump will just lie anyway?

Whatever the explanation for why the press applies so much lower expectations on the former President, who has been running for 21 months, than it does on Kamala Harris, just over a month into her campaign, the explanation is a far, far more important story to tell voters than precisely how the Vice President plans to restore the Child Tax Credit.

The only thing this comparison has done is make visible WaPo’s — and the press corp’s, generally — soft bigotry with Donald Trump, the double standard they are applying in their expectations for Kamala Harris as compared to none for Trump.

The lesson of this editorial, contrary to WaPo’s preferred punchline, is that the press is misdirecting where their attention should be focused.

Update: Tweaked to reflect that Trump is a white male former President, not a former white male.

Update: After a bajillion views of this post, I finally found and fixed the “no tips on taxes” you were all trying to get me to fix. All this time I was looking in the bullet list!


There Are No Backsies on Dobbs

Since the day after the debate in June, I have conceived of the shift from a Joe Biden to a Kamala Harris campaign in three ways: The Vice President would more vigorously explain the wildly successful policies of the Biden-Harris Administration. She might (and indeed, has started to) chip away at the Double Hater logjam that has embodied presidential elections since 2016. And she would speak about choice far better than Biden ever could.

At the time, I maintained that Gretchen Whitmer was the only Democrat nationally who speaks better to choice than Harris does. In assuming the presidential ticket, Kamala’s team has made abortion something far more. They have made reproductive rights a cornerstone of a revamped democracy agenda.

That has happened in a curious way. Dobbs only happened because the Supreme Court has become a supercharged, wildly undemocratic wing of right wing policy. The fight to get abortion referenda on state ballots has repeatedly, perhaps most notably in Ohio, had to first defeat anti-democratic efforts to disempower referenda generally. In Wisconsin, voters first had to put Janet Protasiewicz on the Supreme Court before they could turn to protecting reproductive choice, but organizing to do that has laid the groundwork for renewed Democratic vitality. To restore reproductive rights, in state after state, democracy must be renewed.

But all that’s in the background. Kamala’s team has succeeded in making abortion something more: the most obvious item on a laundry list of the ways the far right has tried to take rights (and books) away, a fight for Freedom, one that has enthused millions of younger voters, especially women of child-bearing age.

And so, as I thought it might, Kamala’s focus on choice is one of the things that has remade the race.

It didn’t take rocket science to offer that prediction (though surprisingly few pundits did so, and most people pushing for a Thunderdome primary, who were overwhelmingly men, missed it). Democrats have successfully run on choice since Dobbs;  it has played a central role in Democratic campaigns even in places like Andy Beshear’s Kentucky. Yet Kamala’s clarion voice on the issue largely got ignored as people plotted for ways to bypass the first woman Vice President to replace Biden.

Thus far in this campaign, a focus on abortion has also provided a way to make visible the patriarchy presumed in most threads of the right wing coalition backing Trump, especially but by no means exclusively Christian nationalism. Lest voters ever forget, Kamala’s campaign keeps rolling out one after another video in which JD Vance demands women get back to the role his Church dictates for them: breeding children.

A number of things — the successful convention, a surge in registration among those women of child-bearing age, polls showing that abortion is the most important issue for a larger number of voters — have led horserace journalists to finally cop on.

Or perhaps they’re just noting Trump’s response to Kamala’s focus on choice. I think choice (and the way it harms Trump with women voters) is one reason Trump’s team made Tulsi Gabbard a more formal surrogate; in their appearance together in LaCrosse, billed a Town Hall, Tulsi told the story of her own attempt to conceive using IVF, effectively adopting Tim Walz’ story and focus. Certainly, it’s the reason why, over the course of one day, Trump said wildly contradictory things about choice.

Yesterday, both NYT and WaPo had stories describing the background to that. Trump whisperers Jonathan Swan and Maggie Haberman, who in July first seeded the false narrative that a GOP platform that enshrines fetal personhood reflects a “softened” stance on abortion, treat it as primarily a matter of messaging.

Back in 2022, the former president had told allies — as the Supreme Court was preparing to overturn Roe v. Wade — that the move would hurt his party. Since that year, when Republicans underperformed expectations in the midterm elections, Mr. Trump has been privately emphatic with advisers that in his view the abortion issue alone could kill their chances of victory in November. And he is willing to make as many rhetorical and policy contortions as he deems necessary to win.

It is through that narrow political lens that Mr. Trump has been weighing the subject, despite his role in reshaping the Supreme Court that overturned the landmark 1973 abortion decision.

The results have been confusing and fluid, a contradictory mess of policy statements as he has once again tried to rebrand himself on an issue that many of his supporters view in strict moral terms, and had come to believe that he did, too.

[snip]

Still, even by Mr. Trump’s standards, the past few weeks have been head-spinning for people trying to keep track of his slippery social conservatism.

Twice divorced serial philanderer Donald Trump doesn’t have social conservatism. He has a politically expedient con. Trump has convinced Christian nationalists he was anti-choice in public while attempting to limit the political damage of anti-choice policies behind the scenes. And that con is running headlong into the consequences of the actions he took to sustain the con.

WaPo states this more clearly; this is not about messaging (though WaPo cites Republicans mocking how bad Trump’s messaging on it is). It’s about Trump’s record. Trump had wanted to run on other policies, immigration and Trump’s distorted claims about the economy, but now he’s having to answer for his anti-choice policies.

Many Republicans are hoping that other topics, like the economy and the border, will take precedence for voters, and they cite polls showing broader voter interest in those issues than in abortion.

Trump campaign spokeswoman Karoline Leavitt said in a statement that women voters will compare the Trump and Biden-Harris administrations, and that under Trump, “the economy was better, groceries and gas cost less, our neighborhoods were safer, and young women like Laken Riley were still alive” — a reference to a Georgia student allegedly killed by someone who entered the country illegally in 2022.

But, as noted, in the month since she has entered the race, Kamala has made abortion the primary issue for more voters than immigration is, and it rivals the economy as the most important election issue among women voters.

Swan and Maggie describe how Trump became what they describe as “agitated” after watching the way the DNC made abortion a primary focus.

In private, Mr. Trump was agitated by the speeches at the Democratic National Convention, according to a person close to him, many of which tied him to Project 2025, an effort by people supportive of Mr. Trump to develop policy proposals for him if he wins that include restrictive ideas for reproductive measures. He was especially bothered by Ms. Harris’s assertions that a second Trump term would further imperil abortion rights.

This is more than agitation.

It is flailing.

Panic.

A recognition that he is losing because of actions he took as President, he is losing because of what the payoff he owed to social conservatives who put him in the White House, a far right SCOTUS, did to women. What NYT journalists with another book contract describe as “head-spinning” is not about branding, it’s about panic because Kamala threatens to hold him accountable for his actions.

No matter how many contradictory statements Trump makes about what a second Trump term would do, there’s no escaping what his first term did do. There are no backsies on Dobbs. There are no backsies on Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. There aren’t even any backsies on that platform granting fetuses protection under the 14th Amendment, even if NYT’s Trump whisperers continue to pretend that didn’t happen.

I mean, come on! If not for the three people Trump added to SCOTUS and those, like Clarence Thomas and Sam Alito, paid for by the same far right Christian nationalists that pushed Vance as a candidate, Trump would be sitting in trial for his attack on January 6 as we speak. Trump is only here, in the race, because of those ideologues who were willing to alter the Constitution to serve a far right agenda. Trump has survived thanks to that Court; he is panicking as he considers the possibility it’ll sink him as well.

And even as Kamala already has Trump panicking, it could get worse for Trump and his party.

There’s something about the WaPo version of this story that I can’t get out of my head; it’s actually one of the reasons I went through the trouble of writing this post. Its subhead (presumably not written by the journalists) suggests Trump’s wild gyrations on choice come during the “final stretch” of the campaign. “Heading into the campaign’s final stretch, Republicans careen between their base and swing voters on the powerful issue of reproductive rights.” The temporal observation, that we’re in the last stretch, is undoubtedly true viewed through the lens of the traditional interminable US presidential campaign. Labor Day kicks off the last, most intense period of a campaign, though importantly, the period when low-information voters first start to tune in. Given Trump’s attempt to stave off criminal charges by announcing his run early, in November 2022, it’s far more true of Trump, who is 91% of the way through his run to regain the presidency.

Not so Kamala Harris.

As I calculated Wednesday, Kamala is just starting the second third of her campaign, what we might call her second trimester if it were three times as long. As of today, she has 60% of her campaign, 64 days of 107, left to go.

And so, even as Kamala has already made Trump an equivocating wreck, nine-tenths of the way through his campaign and just in time for low-information voters to witness it, she has only just laid a foundation to build on. Even as the press described Trump’s flopsweat as abortion threatens to ruin his bid, Kamala’s campaign rolled out a bus tour to focus on reproductive rights.

They are, quite literally, taking it to Trump, to Palm Beach, for the kickoff.

Today, Team Harris-Walz is announcing the launch of its “Fighting for Reproductive Freedom” bus tour with a kickoff event in Donald Trump’s backyard in Palm Beach, Florida, on Tuesday, September 3. Senator Amy Klobuchar, Harris-Walz campaign manager Julie Chavez Rodriguez, Republican TV personality Ana Navarro, and reproductive rights storyteller Anya Cook will hold Trump directly accountable for the devastating impacts of overturning Roe v. Wade, including threatening access to IVF.

This fall, the bus will make at least 50 stops in key states, touching blue communities and red ones, with support for reproductive rights transcending party lines. Each stop will emphasize the stark contrast between Vice President Harris and Governor Walz, who will restore the protections of Roe when Congress passes a bill to do so, and Donald Trump and JD Vance, who will enact their dangerous Project 2025 agenda to ban abortion nationwide, restrict access to birth control, create a national anti-abortion coordinator, force states to report on women’s miscarriages and abortions, and jeopardize access to IVF.

This is a bus tour of diverse surrogates, not Harris or Walz themselves. The grand-daughter of César Chávez, Julie Chávez Rodriguez, is the only royalty on this bus. But the bus provides the campaign a low-effort way to build on the foundation established at the DNC, to try to yoke state referenda more closely to partisan races, to try to make races like that of Florida Senate candidate Debbie Mucarsel-Powell (or that of Angela Alsobrooks or Dan Osborn) more competitive. If that works, who knows how close Kamala might make the Florida race itself? Even assuming Kamala won’t beat Trump in his own state, it will serve to reinvigorate a state party that had been struggling, but which also just recently delivered embarrassing defeats to Moms for Liberty, the book-burners who serve as both Ron DeSantis and Trump’s surrogates to reach women.

Thus far, horserace journalists have been absolutely loathe to hold Trump accountable for the bad things that happened when he was President: his failures on COVID as well as jobs lost for reasons other than pandemic, the spike in crime, his corruption of rule of law.

But Kamala has finally made Trump own something, his role in stripping women of their bodily autonomy.

And in response, Trump has started to panic.

Update: This Public Notice piece on the press’ willingness to let Trump flip flop on choice with impunity him on it names several other policies he should not have backsies on either.

There’s no earthly reason to give Trump the benefit of the doubt here. Besides dismantling the Affordable Care Act’s contraceptive mandate, the Trump administration also tried to undermine private insurance coverage for abortions, prohibited clinics from receiving federal funds under Title X if they even referred people elsewhere for abortion services, and slashed grants for teen pregnancy prevention programs. A second Trump administration will be comprehensively terrible for reproductive rights generally, not just abortion, and no amount of uninformed flip-flopping will change that.


Trump Wants to Hide His Attempt to Assassinate Mike Pence from Voters

In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

Jack Smith doesn’t propose a schedule (thereby avoiding any claim he’s trying to push pre-election developments), but he’s ready to get this process started right away. He does want Judge Chutkan to make determinations regarding immunity first and foremost. He cites Chutkan’s own order and SCOTUS’ remand order to justify that.

The Court has indicated that it intends to conduct its determinations related to immunity first and foremost. See, e.g., ECF No. 197 (Order denying without prejudice the defendant’s motion to dismiss the previous indictment on statutory grounds and specifying that he “may file a renewed motion once all issues of immunity have been resolved”). The Government agrees with this approach, both because the Supreme Court directed such a process on remand, see Trump v. United States, 144 S. Ct. 2312, 2340 (2024), and because the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal citations omitted).

Trump, by contrast, wants to stall any consideration of immunity until December 13 by first litigating a challenge to Jack Smith’s appointment that Aileen Cannon approved but which conflicts with several binding precedents in the DC Circuit (and which Trump pointedly didn’t try before Chutkan last fall, when he submitted all his other motions to dismiss).

Trump-appointed Judge Mark Scarsi rejected Hunter Biden’s similar attempt to challenge David Weiss’ Special Counsel appointment in the wake of Judge Cannon’s ruling as untimely, and there’s good reason to believe that would be the likely outcome here, even before getting to the binding DC Circuit precedent.

You need look no further than Trump’s description of what he wants to challenge in the superseding indictment to understand why Trump wants to delay this fight until December: As I predicted, he wants to have the Mike Pence allegations thrown out.

In addition, while continuing to strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune—including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors—President Trump may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence, along with other potential key threshold motions. Namely, in Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” (emphasis added)).

To be sure, he’s not wrong to challenge the inclusion of the Pence allegations. Nor is he wrong in his view of how central Pence is to this indictment (though he overstates when he claims it would moot all else; the fake electors plot might survive the excision of the Mike Pence allegations).

As I explained, Justice Roberts raised the conversations with Pence specifically. But as I also explained, that is one of the shrewd things Jack Smith did in superseding the indictment: he stripped out all other things that obviously fit under Roberts’ guidelines, leaving only Trump’s efforts to get Pence to throw out the votes of 81 million Biden voters and when Pence refused, Trump’s action — a tweet — that almost got Pence assassinated.

Trump may well succeed in arguing that he can’t be prohibited from asking Pence to overturn the results of the election so the two of them could remain in power because any such prohibition would chill the normal conversations between Presidents and their Vice Presidents. That is simply the absurd logical result of Roberts’ opinion: that a President can order his Vice President to steal an election because any prohibition on doing so would chill the authority of the President.

But if Jack Smith has his way, Trump will have to make that argument — once, probably in a court filing in October — before voters go to the polls in November.

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.


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Michael Shear and Reid Epstein Feign Stupidity about Trump’s Decade-Long Pitch for Authoritarianism

Here’s what the NYT digital front page looks like for me this morning.

It features Kamala Harris’ rather unremarkable interview with CNN (part one, part two, part three) as prominently as CNN itself (other political outlets are more focused on an upcoming Brian Kemp decision on how Georgia’s election will be run, Trump’s attempt to flip-flop on abortion, and yet another attempt from Trump to delay his sentence in his New York case).

Whatever.

After demanding it for a month, I get that some outlets need to claim this interview was more useful than it was.

But the remarkable thing about NYT’s focus on it is they’ve written two stories substantially about the same thing: The NYT’s own month-long campaign to drive Joe Biden from the race.

Yet in adopting that focus, Reid Epstein and Michael Shear ignored the logic that their own outlet adopted for such an unrelenting push to oust Biden, and in the process, covered up the threat Trump poses to democracy.

Of the seven things Epstein took away from the interview, the first was an overstatement of the degree to which Kamala was “hugging” Biden’s legacy versus the degree to which (for example, on fracking) she will make concessions if it achieves an overall policy goal.

Nevertheless, Epstein is right that Harris was better able to explain the success of Biden’s policies, one of two reasons I was pretty sure, from the start, swapping Harris for Biden would be an improvement, justifying the swap.

As it turns out, Ms. Harris is a better salesperson for Mr. Biden’s accomplishments and defender of his record than he ever was. Perhaps that’s little surprise, given the president’s diminished political skills and trouble speaking coherently in recent years.

Having thus maligned Biden, Epstein then claimed that Harris wants to turn the page on both Biden and Trump. He focused on Harris’ depiction of her opponent not by name, but time period — the last decade — and quipped (I’m sure Epstein thinks this is clever!) that Biden has been prominent over the last decade and a half (treating the two years between when Biden reacted strongly to Charlottesville and the time he actually announced as part of his candidacy).

… but wants to turn the page on him as well as Trump.

What Ms. Harris did do was offer herself up as a continuation of Mr. Biden’s leadership even as she distanced herself from him.

Asked by Ms. Bash if she had any regrets about defending Mr. Biden’s fitness for office and ability to serve a second term, Ms. Harris said she did not and praised the president.

Then, in the next breath, she deftly put both him and Mr. Trump in the rearview mirror.

“I am so proud to have served as vice president to Joe Biden,” she said. “I’m so proud to be running with Tim Walz for president of the United States and to bring America what I believe the American people deserve, which is a new way forward, and turn the page on the last decade of what I believe has been contrary to where the spirit of our country really lies.”

Mr. Biden, of course, has been either president, vice president or a leading candidate for president for most of the last 15 years.

Then Epstein returned to it in his commendation for the boring interview, suggesting that Bash didn’t demean Biden as much as Epstein — or rather, “Republican critics” — want.

Republican critics of Ms. Harris may have wished for a harsher grilling — or for more direct questions about how she felt about Mr. Biden’s aptitude and acuity — but Ms. Bash pressed the vice president when necessary.

Shear did something similar.

His entire post focused on how Kamala answered Dana Bash’s question (three minutes into the third part) of whether the Vice President regretted supporting Biden until he dropped out.

Vice President Kamala Harris said on Thursday that she did not regret defending President Biden against claims that he had declined mentally, saying that she believes he has the “intelligence, the commitment and the judgment and disposition” Americans expect from their president.

“No, not at all. Not at all,” the vice president said when asked if she regretted saying Mr. Biden was “extraordinarily strong” in the moments following the disastrous debate in June that led him to abandon his bid for re-election a month later.

Shear did not, as Epstein did, feign confusion about what Harris meant when she adopted that “last decade” moniker. He explained — perhaps for Epstein’s benefit? — that it was a reference to Trump.

Instead, he misrepresented what she was doing with Biden, temporally, claiming that “she talked about Mr. Biden mostly in the past tense[,] with a kind of nostalgia.”

But she talked about Mr. Biden mostly in the past tense — fondly, but with a kind of nostalgia that made it clear that he no longer represents the future of the country that she hopes to be leading in January.

[snip]

“History is going to show,” she said, “not only has Joe Biden led an administration that has achieved those extraordinary successes, but the character of the man is one that he has been in his life and career, including as a president, quite selfless and puts the American people first.”

Her reminiscing about Mr. Biden’s place in history — she said it was “one of the greatest honors of my career” to serve with him — came just after she said she was determined to “turn the page” on a decade of American politics that has not been good for the country.

“Of course, the last three and a half years has been part of your administration,” Ms. Bash reminded the vice president.

Ms. Harris said she was talking about “an era that started about a decade ago,” an apparent reference to the beginning of former President Donald J. Trump’s first campaign for the White House in 2015. She said the era represented a “warped” idea that “the strength of a leader is based on who you beat down.”

That was clearly directed at Mr. Trump, and she suggested that the warped era would continue if he returned to the White House next year. [my emphasis]

Now, in point of fact, both men misrepresented how the Vice President used that “decade” moniker. She actually used it twice. Once, the instance they focused on, in the last third of the interview, which I’ll get to.

But she also used it in response to Bash’s very first question, the dumb “what would you do on Day One” question that TV pundits love.

I think sadly, in the last decade, we have had in the former president someone who has really been pushing an agenda and an environment that is about diminishing the character and strength of who we are as Americans, really, and I think people are ready to turn the page on that. [My emphasis; after this, Bash snapped back, repeating the, “what would you do on Day One” question.]

That is, Harris defined what she meant by “the last decade” in what was probably her fifth sentence in the interview (possibly even fourth — the woman may use longer sentences than me!), after introducing a focus on the middle class and a return to hope. From her very first response, Harris tied the way Trump (whom she never named) has diminished America to some kind of effect it might have on the middle class.

And the questions that followed that one were focused on policy, which Harris always addressed, whether in the present tense or past, in her role as Vice President. “Well first of all, we had to recover, as an economy,” Harris explained why she (and Biden) had not implemented further steps she’d like to take to help the middle class. “That’s good work,” Kamala boasted, after listing a bunch of Biden’s economic accomplishments. “There’s more to do, but that’s good work.”

In fact, Kamala’s answer to the question NYT dedicated much of two columns on, whether she regretted defending President Biden after he bombed the debate, was in the present tense.

Harris: I have served with President Biden for almost four years now and I’ll tell you it’s one of the greatest honors of my career. Truly. He cares so deeply about the American people. He is so smart and loyal to the American people. And I have spent hours and hours with him, be it in the Oval Office or the Situation Room. He has the intelligence, the commitment, and the judgment, and disposition that I think the American people rightly deserve in their President. By contrast, the former President has none of that. And so, one, I am so proud to have served as Vice President to Joe Biden. And two, I am so proud to be running with Tim Walz for President of the United States, and to bring America what I believe the American people deserve, which is a new way forward and turn the page on the last decade of what I believe has been contrary to where the spirit of our country really lies. [my emphasis]

In a question implicitly about how successful she has been thus far, in the race, Kamala defined who Biden is, present tense, and then explicitly contrasted that to Trump. Biden has, present tense, the intelligence, commitment, judgment, and disposition to be President, and Trump has, present tense, none of that. That’s what she used to springboard from her tenure as Vice President into her candidacy with Walz, a way to turn the page on the last decade that has been contrary to the spirit of the country.

Bash, like Epstein, tried to make this a gotcha, which is when Kamala explained for the second time what she was talking about.

Bash: The last decade — of course, the last three and a half years has been part of your Administration.

Harris: I’m talking about an era that started about a decade ago where there is some suggestion — warped, I believe it to be — that, the measure of the strength of a leader is based on who you beat down, instead of where I believe most Americans are, which is to believe that the true measure of the strength of a leader is based on who you lift up. That’s what’s at stake as much as any other detail that we could discuss in this election. [my emphasis]

But then Harris returned to what she said in that very first question: When she says “last decade” as stand-in for the opponent she won’t name, she means that a different vision of leadership is as important as any of the policy questions.

Where things turn to a past tense in which Harris does not presume herself to have participated — the one that Shear quotes to support his claim that “she talked about Mr. Biden mostly in the past tense” — came in response to her telling of how Biden told her he was going to drop out, which led her to think about how history — people in the future — will regard Joe Biden and the decision he was making, placing this past tense as past to some future time when pundits finally get their heads out of their asses.

The VP told the story: she was interrupted while making extra bacon for one of her grand nieces by a call from Joe Biden. Biden told her his decision, and, “I asked him, are you sure. And he said, yes. And that’s how I learned about it.”

The past tense Shear quoted came in response to a follow-up.

Bash had asked, and pressed a second time, whether Biden offered to endorse Harris right away. Harris responded that Biden was very clear he was going to support her (Kamala didn’t actually answer about the endorsement, but then they may have had earlier conversations), but that that wasn’t her first priority.

My first thought was not about me, to be honest with you. My first thought was about him, to be honest.

She then launched on a reflection about what, “I think history is going to show” about Joe Biden’s presidency, describing it as transformative economically, bringing back American alliances. Then she addressed “the character of the man.”

This is a question that goes back to one of two reasons Biden offered in February why he remained in the race: because he was really good at being President. The other (as I reviewed the day after the debate) was that he believed, in February, he had the best shot at beating Trump.

On July 21 — on the day that Biden was still scrambling to make the prisoner exchange with Russia even as NYT pundits were falsely reporting he was totally isolated — Biden was still very good at being President. With the significant exception of Gaza, he may still be. By that point on July 21, though, it had become clear that Harris is better able to beat Trump. As suggested by Epstein’s begrudging admission that when Kamala lays out Biden’s economic accomplishments, they look pretty good, part of that is defending the things the Biden Administration did to recover from the mistakes Trump made.

But part of it is offering a contrast with Trump. Which, because Harris apparently chose not to name her opponent and not to let silly pundits demand a response to Trump’s latest attention-getting provocation, as Bash did with a question about Trump’s presumption to define Harris’ race, the Vice President is referring to as a last decade. She did it in response to the first question, and she did it a second time in response to the question NYT chose to write about twice.

This is actually a pretty subtle way to do this. Obviously, Harris has befuddled two men who imagine themselves experts.

In their confusion about it, though, Epstein and Shear make a similar mistake to the one their colleague Shane Goldmacher did when he described that Kamala was running as a change candidate. They did so, even though Goldmacher himself referred to what Kamala was running against as Trump’s “decade”-long “bulldozing approach” advocating for “urgent upheaval.”

[S]o much of Trump’s lasting influence is about his lasting attack on rule of law. The insistence that this is about incumbency obscures the real threat Trump poses to democracy, whether or not he’s president.

Take this crazy Goldmacher paragraph.

For nearly a decade, Mr. Trump’s bulldozing approach has been premised on the idea that the nation was staring into an abyss and only urgent upheaval could save the country. The question for Ms. Harris is whether she can frame Democrats keeping power in 2024 as a break from that dark and divisive era.

It is true that Trump has been claiming that “only urgent upheaval could save the country.” But that was a fascist trope. It wasn’t true and even if it were, none of the policies Trump pushed would do anything but enrich people like him. Journalism should do more than observe that he made those false claims; it should explain why they’re false.

In the very next sentence, though, Goldmacher asserts that the challenge for Kamala (again adopting the dumb poll-driven assumption that she’ll only win if she is the change candidate) is by offering, “a break from that dark and divisive era.” What “era”? By reference, Goldmacher must mean that the near-decade in which Trump has told fascist lies is the “dark and divisive era” (though Trump’s racist birtherism started long before that). But it’s not an era. It’s a fascist belief, a means of exercising power, a means of dehumanizing your political opponents, one that had huge influence, but one that with the exception of the political violence it fostered, only held sway over a minority of the country (albeit a large one).

All three of these men — Goldmacher with his treatment of Trump’s tropes about America as an era, Epstein with his confusion about Harris’ (second) reference to a decade, and Shear’s invention of past tense usage that doesn’t exist — struggle because they’re viewing this exclusively about policy, even though Harris described that “the true measure of the strength of a leader” is “what’s at stake as much as any other detail that we could discuss in this election.”

As I noted in the earlier post, when people flatten this out into policies and incumbency, they ignore the ongoing threat that Trump poses to democracy and Kamala’s vision of how to defeat it.

Kamala is running on democracy just as much as Biden did in 2020. It just looks different, because she has more successfully wrapped it in a bipartisan flag. Even there, there’s real continuity (don’t forget that one of Biden’s most important speeches about democracy in 2022, one that had a real impact on the election, was at Independence Hall).

Largely enabled by Trump’s ongoing effect — again, especially on Choice — Kamala has just found a way to make democracy matter more personally, more viscerally.

Kamala is not eschewing the incumbency she has Vice President. On the contrary, she is running on a continuation and expansion of Joe Biden’s successful policies (even if journalists are missing that). And she is running, just as Biden did, on defeating both Trump’s electoral bid but also the threat he poses to democracy itself.

This is precisely why the NYT said the stakes on Biden dropping out were so high as it kicked off a relentless campaign to force Biden out: because, first, Donald Trump was a menace, and second, Biden didn’t have what it takes to hold Trump accountable.

Donald Trump has proved himself to be a significant jeopardy to that democracy — an erratic and self-interested figure unworthy of the public trust. He systematically attempted to undermine the integrity of elections. His supporters have described, publicly, a 2025 agenda that would give him the power to carry out the most extreme of his promises and threats. If he is returned to office, he has vowed to be a different kind of president, unrestrained by the checks on power built into the American political system.

[snip]

He struggled to respond to Mr. Trump’s provocations. He struggled to hold Mr. Trump accountable for his lies, his failures and his chilling plans. More than once, he struggled to make it to the end of a sentence.

These self-imagined pros apparently haven’t thought through how this all works. Epstein, at least, is still looking for his pound of flesh, for further humiliation for Joe Biden. The others are ignoring the two tasks: win an election, and reinvigorate an American dream that — because doing so would prove that democracy can deliver for the middle class — proves the value of democracy.

Kamala Harris is, in no way, disavowing Joe Biden. Rather, even as she’s pitching their joint policy success, she’s renewing the effort to package an American exceptionalism that can defeat Trump’s American carnage.

In 2020, Joe Biden, a member of the Silent Generation, offered a defense of democracy as democracy, which was enough for people who remember fascism and actual communism. In an era when many have forgotten that history and lost faith in democracy, GenX Kamala Harris has to do something more: She has to sell democracy, which Trump has been discrediting for a decade, itself.


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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

TRUMP: What – what’s your question?

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

The second one (ph) …

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

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

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

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

(LAUGHTER)

this is worth $18 million.

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

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

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

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

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

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

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

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

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

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

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

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

Crowd size.

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

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

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

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

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

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


The Missing Detail about Encryption in the Pavel Durov Investigation

Yesterday, France charged Pavel Durov and set €5 million bail for the Telegram founder. The public release regarding the charges provides scant new detail from what prosecutors released when he was first arrested.

For example, the new release confirms that a preliminary inquiry started in February, before the formal investigation was started on July 8. That’s consistent with a Politico report that France first issued arrest warrants for Pavel and his brother, Nikolai, subsequent to an investigation into someone using Telegram to engage in child sexual abuse, including rape.

Warrants for Pavel and his brother Nikolai, the platform’s co-founder, were issued on March 25 over charges including “complicity in possessing, distributing, offering or making available pornographic images of minors, in an organized group.” French media had previously reported the probe was opened in July.

The warrants were issued after an undercover investigation into Telegram led by the cybercrime branch of the Paris prosecutor’s office, during which a suspect discussed luring underaged girls into sending “self-produced child pornography,” and then threatening to release it on social media.

The suspect also told the investigators he had raped a young child, according to the document. Telegram did not respond to the French authorities’ request to identify the suspect.

The list of charges in the release yesterday does not exactly match those released last week. The lead charge, “web-mastering an online platform in order to enable an illegal transaction in organized group,” is further described as a crime that carries a 10-year sentence and/or a €500,000 fine. Given how particular French code is about punishment, one might be able to hone in what lead crime that language is pursuing (it seems more common for five year sentences to match a €150,000 fine).

In addition to listing Telegram’s refusal to cooperate with law enforcement requests second among suspected crimes, as the original release did, yesterday’s release has that bolded below, with a description of how other authorities, including Belgium, are having the same problem. This investigation seems to primarily stem from the way Telegram has allowed crimes to flourish on the platform, and as such, most of the rest of the charges may reflect efforts to further criminalize Durov’s choice to do nothing about crimes that rely on Telegram.

There are other changes between the initial release and yesterday’s, which may be of little or no import or may reflect what prosecutors have learned since they arrested Durov. For example, possessing (as distinct from disseminating) CSAM images has been dropped; that’s the kind of change that might reflect the server configuration Telegram uses, and whether any Telegram server hosts CSAM material within France.

Criminal association has now been included in the general list, rather than as a separate bullet point. Money laundering, however, has not. One unanswered question is whether Durov was more directly involved in money laundering than the other crimes, in which case prosecutors might show that he had a personal pecuniary incentive to let all the other crime flourish on Telegram.

In that same general list, the dissemination of hacking tools was moved up to first, from fourth.

But one of three encryption-related crimes, “Importing a cryptology tool ensuring authentication or integrity monitoring without prior declaration,” was dropped. Again, that could reflect new information about server locations.

It’s the commentary regarding the (now two) encryption-related crimes that most befuddles me. The American press, at least, continues to discuss this as if this is a crime about using encryption.

Some online speech experts and privacy advocates agreed that France’s indictment of Durov raises concerns for online freedoms, pointing in particular to charges relating to Telegram’s use of cryptography, which is also employed by Apple’s iMessage, Meta’s WhatsApp and Signal.

“French law enforcement has long hated encryption,” said David Kaye, a professor at University of California, Irvine School of Law and former U.N. special rapporteur on freedom of expression. “This seems like a potential avenue for them to blame what happens on Telegram at least in part on encryption, when the truth is that the other counts suggest that Telegram’s noncooperation with judicial orders is the real problem.”

Stamos agreed the charges related to cryptography are “concerning,” because “that seems to apply even to platforms that are actively working to prevent the spread of child sexual abuse material.” He said that while Telegram has at times banned groups and taken down content in response to law enforcement, its refusal to share data with investigators sets it apart from most other major tech companies.

As far as I understand it, the law in question is one passed in 2004 that required affirmative registration of encryption. Signal, easily the most protective encrypted messaging app, did register under this law when it first applied to offer Signal in French app stores. So, no, they’re not going to be prosecuted under that law, because they’re following the law.

And therein lies the question I keep asking but people are ignoring: whether this law works like the affirmative registration requirements in the US for acting as a foreign agent. The US uses 18 USC 951, for example, to prosecute people who are secretly doing things for a foreign government — such as the targeting for which Maria Butina was prosecuted — without having to prove they were affirmatively spying. DOJ didn’t have to prove that Butina (speaking purely hypothetically here) honey trapped Patrick Byrne as part of a Russian effort to recruit nutballs with an investment in cryptocurrency; they could instead prove merely that she was taking orders from a government official (in this case, Alexandr Torshin), without alerting DOJ to that fact. The obligation to register provides a law enforcement tool that can be used when an underlying crime — like spying — is far more difficult to prove, or would harm counterintelligence if one tried.

For example, 18 USC 951 was used in the failed prosecution of Mike Flynn and his business partner, Bijan Kian. it wasn’t until the eve of the Kian’s trial that DOJ revealed the existence of, but not the details about, far more extensive communications pertaining to Flynn and the Turks (that revelation did not explain whether these were communications between Flynn and the Turks, and/or communications the Turks had about Flynn) than had previously been revealed.

I don’t know if this is how France uses this law, or if they may be doing here. What I’m saying is that the crime is failing an affirmative obligation to register, a law that has not prevented Telegram’s counterparts from operating lawfully in France.

Let me extend the analogy to a case where we know Telegram was used to facilitate crime (though not one of the crimes in which Durov has been charged with complicity).

As I laid out here, we know that after January 6, the FBI discovered that the Proud Boys were using unencrypted Telegram group chats to organize in advance of the insurrection. But once it obtained and exploited Enrique Tarrio’s phone, which took over a year to do, the FBI also discovered that Tarrio was using Telegram (in addition to Google Voice chat and iMessage) to communicate with a DC intelligence cop, Shane Lamond. Those encrypted communications will be key evidence in Lamond’s trial in October, but the use of Telegram, whether encrypted or not, was not a crime and not charged as one.

Those Telegram communications include:

  • The message where Lamond was added to an unencrypted Proud Boys chat (meaning, of course, that a cop with close ties to the FBI did know how the Proud Boys were using Telegram long before January 6, and indeed Tarrio tried to use his comms with Lamond as an affirmative defense to the sedition charges against him).
  • Private unencrypted Telegram messages that at least started as Lamond’s effort to learn what the Proud Boys were doing ahead of time, and so fell squarely within Lamond’s job as an intelligence officer, but which — after the election — started to include advice about how to avoid law enforcement scrutiny.
  • Starting after the December 12, 2020 burning of a DC Church’s BLM flag, secret, encrypted Telegram messages about Tarrio’s role in that act and the investigation into him for it; those encrypted communications would later include discussion of the planning and aftermath of January 6.
  • Telegram calls about the investigation that could not be reconstructed (though some conducted with his replacement phone may have been).
  • Starting on December 22, encrypted Telegram messages with the auto-delete set; the FBI was able to reconstruct some, but not all, of these. Among those they weren’t able to reconstruct, a January 4, 2021 encrypted text successfully destroyed must have alerted Tarrio that DC had obtained a warrant for his arrest, because Tarrio immediately told some girlfriends and Jacob Engels via unencrypted Telegram texts, as well as some Proud Boy Telegram group chats, that about the arrest warrant. The men appear not to have tried to delete Tarrio’s self-exonerating encrypted Telegram text, “I could have stopped this thing.” But they did resume destroying encrypted Telegram messages as the investigation into the Proud Boys progressed.

That use of Telegram, whether unencrypted, encrypted, and/or self-deleting, is not illegal in the US. Rather than busting Lamond for that, prosecutors charged him for lying about the earlier communications, for obstructing the investigation into burning the BLM flag. There’s no charge related to Lamond’s warnings about January 6, and indeed, the reconstruction or not of later texts between the men is not included in the trial exhibit. But more of the January 6 texts were successfully destroyed.

Now consider the significance of a case where cops knew a militia group were using Telegram’s unencrypted features, ones the FBI could have hacked, but that collusion between the militia and law enforcement was hidden via the use of Telegram’s encryption. The FBI wasn’t looking in any case, but even if they had been, it is at least conceivable where a seditionist like Tarrio used better operational security and didn’t immediately undercut the value of using encryption by blabbing to others, but that the encryption prevented the FBI from understanding the extent that the cops were helping the seditionists.

The use of Telegram is not illegal in the US. As I understand it, the use of it is not being charged in France.

But in France, the requirement to pre-register provides a tool prosecutors might choose to use if the use of encryption ends up playing a detrimental role in crimes in the country, as Telegram notoriously has.

I have no idea whether that’s how it’s being used here.

But it is at least possible that Durov is being charged under these two encryption crimes because criminal (or intelligence) investigations in France discovered, via exploiting suspects’ phones or possibly even with the help of a cooperating witness, that Telegram encrypted chats played a key role in one or another particular plot. That could have been nothing more than the child sexual abuse whence this investigation started. Or it could be something that raised the stakes for France, such as sabotage attempted by a foreign power.

Pavel Durov is being charged because communications to which Telegram had ready access were used to commit a number of crimes (but not, notably, hate crimes). Far too many outlets are describing these crimes as pertaining to encryption; it may not be. It pertains to the commission of crimes, using Telegram, including a great number that Telegram allegedly had means to learn about but, by refusing law enforcement process, sustained deniability.

It appears that he is also being charged because he made it possible to further protect communications, including from Telegram engineers, without following French registration laws before he did that. That is, France appears to be charging Durov not because he knows what the encryption is serving to hide, but by dint of his failure to adhere to French registration requirements, his plausible deniability regarding encryption doesn’t help him dodge criminal liability.

I may be misunderstand the law — I’m still looking for French sources to explain this, because American ones are not citing French lawyers — but if people are writing about the role of encryption in this case, the difference between “providing” encryption and “providing it without registration” is key.

Update: Since we’re focused on Telegram’s non-cooperation with law enforcement, this exhibit list for Lamond’s trial shows how they have to authenticate those comms instead: Through a variety of forensic reports, and then via summary chart.


Strict Scrutiny and Rational Basis Scrutiny

Index to posts in this series

In Chapter 2 of How Rights Went Wrong, Jamal Greene introduces us to a rule of Constitutional interpretation suggested by Oliver Wendell Holmes in his dissent in Lochner v. New York (1905).  The idea is that the Constitution protects few rights, but those it protects, it protects strongly. This cashes out as the requirement that the government must show very strong grounds if it infringes a protected right, the strict scrutiny test. However, the government need only show that it has a rational basis for other legislation, the rational basis test.

Chapter 3 explains how that rule came into effect, worked for a while, and then proved inadequate. The principle driver of change was Felix Frankfurter, showing once again the importance of people and relationships in the evolution of our legal system. Frankfurter was the son of Austrian immigrants. He came to New York City in 1894 at the age of 11. He was a star student, went to Harvard Law, and began to rise in government service. Greene describes him as “An inveterate sycophant and social climber” (p, 60). One of his targets was Holmes, and over the years, Frankfurter slobbered over him.

In 1914 Frankfurter joined the law faculty at Harvard and began to advocate for the Holmes dissent in Lochner. He was in and out of government service, and became a sort of Leonard Leo figure, placing his best students in clerkships and government positions.

He forged a relationship with Franklin Delano Roosevelt during WWI when both served on a government board. The relationship grew when FDR became governor of New York.

The effort to actualize Holmes’ Lochner dissent wasn’t going well through the 1920s, as the Supreme Court repeatedly applied the rule of the Lochner majority. When FDR was elected president, Frankfurter became one of his most trusted advisers. In the early years of the New Deal, SCOTUS struck down most of the laws enacted to deal with the Depression. That led to FDR’s threats to pack the Court, and to the sudden change in the outcomes of these cases.

US v. Carolene Products Co. was an early example. In that case, the majority based its decision on Frankfurter’s view of Holmes’ Lochner dissent. Further, it expanded that rule with Footnote 4, which Greene summarizes as holding that strict scrutiny would apply in three different cases:

(1) when the law interferes with a right the Constitution specifically protects, (2) when the law restricts the political process itself, or (3) when the law discriminates against particular religious or racial minorities. P. 66.

I read Greene as suggesting  that one of the factors in Frankfurter’s advocacy was his progressive view of the need for government regulation of corporations. Footnote 4 connects that view with strong protection for minority groups.

Greene shows how this rule made its way into the leading treatises and legal textbooks, largely through the influence of people trained and steeped in Frankfurter’s views.

With minor adjustments, that remained the rule through the 50s and early 60s. That was a period of vast social change, and social unrest, as Black people, women, LGBTQ people, Native Americans, and poor people from all groups began to make demands on the legal system that went beyond the bare scope of Footnote 4.

One example of this push is Griswold v. Connecticut, which Greene discusses in detail. One of Frankfurter’s last SCOTUS decisions was Poe v. UllmanPoe was a facial challenge to Connecticut’s ban on birth control. Frankfurter punted, saying that the statute was never enforced. Side note: the legal term is desuetude. It ought to apply, for example, to the Comstock Act which isn’t ever enforced, but with the current majority on SCOTUS, who knows.

Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, got herself and a doctor arrested and convicted for dispensing birth control material and information. Frankfurter had retired due to a stroke. William O. Douglass, who had dissented in Poe, wrote the majority opinion in which he laid out the right to privacy.

In the remainder of the Chapter, Greene looks at the different ways courts, especially SCOTUS, have tried to deal with the demands of groups whose rights were limited by all branches of state and federal governments.

Discussion

1. Reading between the lines, it seems to me that Greene thinks that the values, biases, and opinions of judges play a crucial role in decisions. This is one of several versions of legal realism.

For the purposes of this Article, I define “legal realism” as the perspective that Supreme Court decisions resolving important constitutional law questions are based primarily on the Justices’ values, politics, and experiences, not on text, history, or precedent. In other words, personal preferences, rather than the prior law dictate most Supreme Court constitutional law decisions.

2. Here’s an example. Richard Posner is an intellectual. He served on the 7th Cir. From 1981 to 2017. He taught at the University of Chicago Law School for decades. He seems to have been influenced by the strict neoliberalism taught at the Chicago Business School. That connection perhaps led him to his theory of law and economics, which I would describe as the idea that in deciding cases Posner would assume that the law favors the economically efficient outcome.

In a 1985 article, An Economic Theory of the Criminal Law,  he analyzes crimes like rape in terms of markets and market efficiency, apparently indifferent to the inherent silliness of the effort.

Put differently, the prohibition against rape is to the marriage and sex “market” as the prohibition against theft is to explicit markets in goods and services. [footnote omitted]

After the Great Crash of 2008, he formally renounced the entire project of the Chicago School of economics, including his own law and economics branch. Here’s a discussion.  That, of course, is the mark of an intellectual: he rejected a theory he had relied on for decades when he saw it didn’t work.

2. Greene mentions the deeply felt trope that we have a government of laws, not men, citing John Adams. P. 58.  How does it square with the theory that the prejudices and deeply held world views of judges are a critical factor in their decisions?

In routine cases it’s not a problem. But it’s a huge problem for major constitutional law issues decided by SCOTUS. Neil Gorsuch pompously demonstrated this when he said at oral argument in Trump v. United States,  “…we’re writing a rule for the ages” about presidential immunity from criminal accountability. P. 140. That is not the job of a judge. Writing rules for the ages is the responsibility of legislatures. But the current majority doesn’t think like that. As they showed in Dobbs and the gun cases, they don’t even believe there are rules for the ages. There are only rules laid down by five unelected unaccountable lawyers, good only until changed by five other unelected unaccountable lawyers.

3. I think that when institutions are controlled by people willing to subvert the norms of their jobs to achieve ideological or political goals, the institutions will fail. There are no rules sufficient to restrain them. The only solution is to remove them and replace them with people who comply with the norms.
__________
Graphic: Gilbert Stuart’s portrait of John Adams.


As Maggie Haberman Unabashedly Joins the Kayfabe, Tim Walz Sings the Menards Jingle

Sunday marked the 1/3 mark for Kamala Harris’ presidential campaign (36 of 107 days). Yesterday, she announced her first sit-down interview (with Dana Bash, whom I consider a poor choice); the media hounds are already wailing that, like interviews Barack Obama did with Joe Biden, Mitt Romney did with Paul Ryan, and Trump did with Mike Pence, the Vice President will do the interview with her own VP nominee.

By comparison, Sunday marked the 9/10 mark for Trump’s presidential campaign (650 of 720 days).

Meanwhile, there are a slew of question to which media hounds have not bothered to demand answers from Trump:

  • Will he hire his failspawn to work in White House again?
  • What is Trump’s business relationship with Emiratis and Saudis?
  • Where are his tax returns?
  • Did Trump get $10 million from Egypt to stay in 2016 race?
  • Where are the missing classified documents?
  • What did Putin say in Helsinki?
  • Did Trump have an overt quid pro quo on the Stone, Bannon, and Manafort pardons?
  • How much of his campaign donations has he spent on legal defense?
  • How and (why?!?!) does Trump plan to implement his plan of mass deportation?

In the wake of the DNC, there have been some really good critiques of the media’s failure. Asawin Suebsaeng mocked at the “mollycoddled hogs” who bitched about their own access while bemoaning that of influencers, the bloggers of 2024.

Much of what I witnessed and heard about during my time in Chicago reinforced my preexisting beliefs that far too many so-called elite members of my profession — national political media scribes who fancy themselves as speaking truth to power, but more often just speak words to financially destructive Google algorithms — are mollycoddled hogs who are doing everything they can to fail to meet the enormity of this moment.

Like Suebsaeng, Will Bunch grieved the way journalists were blowing this most important election. He cited three examples:

  • Axios’ Alex Thompson laundering a right wing smears about a typo Tim Walz’ campaign made in 2006 just like he laundered right wing smears about Hunter Biden with little notice from Democrats
  • Rich Lowry’s argument that if Trump repeats a lie over and over — like his 2016 claim that he would build a wall and Mexico would pay for it — that would amount to “character” that might launch him to victory
  • Various “fact checks” that discount direct quotations of Trump’s comments because he later reneged on those quotes

Citing Mark Jacobs, Bunch also flipped Suebsaeng’s focus on mainstream gripes about influencer access. Bunch laid out how, in significant part because of declining trust in mainstream media, those influencers are actually the best route for Kamala Harris to reach voters, particularly the ones who can make the difference in the election.

Jacob has harsh words for how reporters have covered the race, writing that “too many political journalists are marinating in the Washington cocktail culture, writing for each other and for their sources — in service to the political industry, not the public.” But he also notes that traditional media can’t figure out how to compete for young eyeballs against sites like edgy and fast-paced TikTok. Jacob pointed out that public faith in mass media has plunged from 72% in 1976, after Watergate, to just 32% today.

You know who gets the new landscape better than anyone else? Kamala Harris.

The vice president and Democratic nominee is running to be America’s first post-media president. In Chicago, much was made of the fact that Team Harris and the Democrats invited 200 sometimes fawning internet “content creators” who got VIP treatment while mainstream journalists fought over nosebleed-level seats and refrained from eating or going to the bathroom for fear of losing them.

I would add several comments about the real tensions between mainstream reporters and influencers.

First, these discussions of tensions between influencers and journalists have ignored what has happened among right wing media in the last decade– during which time people who would have formerly been called “influencers” (or, more accurately, trolls) have become mainstream, including even former shitty blogger JD Vance. What Harris has done by welcoming these influencers was to foster a progressive media infrastructure akin to the one Barack Obama largely let collapse after his win. If Democrats are lucky, in a matter of years, influencers will be able to feed lazy hacks like Alex Thompson stories that he’ll package up and DC insiders will imagine that amounts to journalism. Until then, they may be able to magnify genuine right wing scandals that the media otherwise ignores. One source of the double standard with which mainstream media has always treated Trump, for example, is this pressure from the right, which really does dictate a lot of press coverage (and which, the Douglass Mackey exhibits showed, those trolls explicitly set out to do as early as 2015).

Second, one thing few people have — still! — accounted for is the degree to which Trump has never been asked to explain policy, allowing him to instead coast on the goodwill and trust accrued over decades of appearing in people’s living room as a TV star. The imagined authenticity that Trump — still! — wields from that gives him an enormous advantage.

To counter that, there’s real value in Tim Walz doing appearances with influencers like this one.

Not only will Walz appear to be an authentic Midwesterner because he shops at Eau Claire based big box store Menards (I, a snooty outsider when I lived in the Midwest and someone who had other people do my gutters, tended to shop at the pricier Lowes instead).

 

 

And there’s no quicker way to convey that he understands how middle class people budget than his comment about sending in receipts to get an 11% rebate.

Most of those that Suebsaeng called mollycoddled hogs would be hard-pressed to understand, much less explain, the thick cultural connotations of this video. Instead, Walz just performs it, with his off-tune Menards jingle rendition to boot.

In other words, it’s not just that Harris has chosen to prioritize those who have trust with the voters she needs to mobilize. Influencers do several other things — things that are absolutely crucial for competing against Trump — that were encouraged on the right but are deemed a slight to journalism now.

Meanwhile, journalists treated with respect are increasingly pumping out Trump-scripted propaganda. Maggie Haberman and Jonathan Swan have been releasing increasingly supine coverage for months. They falsely reported that a platform that enshrines fetal personhood presented a “softened” GOP face on abortion. After a year of reporting on policies that directly parallel those in Project 2025, Maggie floated Trump’s complaints that Democrats were calling him on it. When that team reported on Trump’s Mar-a-Lago “press conference,” the only lies they called out were Trump’s claim to have left office peacefully — but not his lies about the Biden-Harris hand-off, Kamala’s record, Biden and Pelosi’s demeanor, prosecutions of him, Willie Brown and a near-crash in a helicopter, the price of bacon, polling, or even crowd size.

But with yesterday’s coverage of the RFK Jr and Tulsi Gabbard news, this team really stepped over into joining Trump’s faked conflict. Both the subhead and the story presented the two as “progressive Democrats,” adopting Trump’s apparent goal in countering the increasing number of Republicans who are endorsing Kamala Harris.

Both Mr. Kennedy and Ms. Gabbard spent most of their public life as progressive Democrats. Only four months ago, Mr. Trump was calling Mr. Kennedy a “Radical Left Lunatic” who was “far more LIBERAL than anyone running as a Democrat.” Trump allies pushed stories about Mr. Kennedy’s record of supporting abortion rights and far-left environmentalism as they tried to make his independent candidacy less appealing to Trump voters.

The basis for treating RFK as such was a citation from comments Trump made earlier this year, when he was lying about Kennedy in order to improve RFK’s value as a spoiler to Joe Biden. It was all a show, the kind of drama any wrestling promoter uses to enhance the character of his conflicts. And yet Maggie and Swan just quoted it as if they’re too stupid to know Trump’s comments were all a show.

When Maggie and Swan “broke” the “news” that Tulsi was helping Trump with debate prep just weeks earlier, they included details also appearing in yesterday’s piece (such as about Tulsi’s long friendship with Trump, which totally undermines the claim that this association is news), but also repeated something else that is, at best, Trump’s interpretation of how well Tulsi did in the 2019 debate against Kamala.

Ms. Gabbard, who left the Democratic Party after her 2020 presidential run and has rebranded herself as a celebrity among Trump’s base of support, has long been friendly with Mr. Trump and was briefly considered to be his running mate. But her involvement in Mr. Trump’s debate preparation, which has not previously been reported, was partly because of her own performance in a 2019 Democratic presidential primary debate, when Ms. Gabbard eviscerated Ms. Harris in a memorable onstage encounter. [my emphasis]

The unmarked repetition of this opinion is particularly relevant given that others argue Kamala eviscerated Tulsi, precisely because the then-Senator called out all the ways Tulsi was already simply posing as a Democrat so as to platform her attacks on the party.

 

And Democrats have long been repulsed by Tulsi’s apologies for dictators, starting with Bashar al-Assad, but including Vladimir Putin.

You don’t have to decide which woman eviscerated the other. Indeed, avoiding such comment would invite a better explanation for Tulsi’s role in Trump’s orbit, one that these two Trump-whispers don’t claim to know.

Do they — two Trump whisperers who have covered Trump for years — not know that Trump is just a carnival barker, setting up conflict to distract people performing a role called journalism? Have they unwittingly come to merge their own consciousness with his? Or are they just wittingly part of the kayfabe now themselves?

Whichever it is, as actual journalists continue to treat Trump’s obvious con without comment, it flips the complaints about influencers back on its head.

The coverage Trump has enjoyed has long worked to pressure straight journalists into covering things with a right wing spin. And these days, it’s not clear whether the straight journalists need any help.


The Superseding Trump Indictment Is about Obstruction as Much as Immunity

In this Xitter thread, I went through everything that had been added or removed from the superseding indictment against Trump, based on this redline. The changes include the following:

  1. Removal of everything having to do with Jeffrey Clark
  2. Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
  3. Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
  4. Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
  5. Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
  6. New language about the treatment of the electoral certificates

Altogether, the changes incorporate not just SCOTUS’ immunity decision, but also the DC Circuit’s Blassingame decision deeming actions taken as a candidate for office are private acts, and SCOTUS’ Fischer decision limiting the use of 18 USC 1512(c)(2) to evidentiary issues.

The logic of Blassingame is why Jack Smith included these paragraphs describing that Trump and Pence were acting as candidates.

1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.

[snip]

5. In furtherance of these conspiracies, the Defendant tried–but failed–to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate, who plays a ceremonial role in the January 6 certification proceeding.

As I’ve said repeatedly, it’s not clear that adopting the Blassingame rubric will work for SCOTUS, even though they did nothing to contest this rubric.

That’s because Chief Justice Roberts used Pence’s role as President of the Senate to deem his role in certification an official responsibility, thereby deeming Trump’s pressure of Pence an official act. Smith will need to rebut the presumption of immunity but also argue that using these conversations between Trump and Pence will not chill the President’s authority.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict ofInterest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

This is the most important advantage of superseding the indictment. When someone boasted to Bloomberg that Jack Smith’s purported decision not to have a mini-trial on these issues was a “win” for Trump, they envisioned that this meant there would be no media friendly election-season developments, providing a way to get through (a successful or stolen) election so future President Trump could throw the case out.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.

The decision to supersede this indictment may have turned what could have been an immediate dispute about the viability of the indictment at all into an evidentiary dispute to be managed later. We’ll find out more on Tuesday.

At the very least, Jack Smith suggests he has something viable on which to arraign Trump (and Trump’s Xitter wails treating this as a real indictment suggest he may believe that).

Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.

That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.

Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

[snip]

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]

This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.

But the other changes in this passage are all about Fischer, about showing how Trump deliberately sicced a mob on the Capitol with the goal of making it impossible to count the certifications.

After adding language from Trump’s speech (included based on the justification that the rally was paid for by private funds) in which he emphasized the certification process, Smith added other language describing how Trump’s mob disrupted the vote certification over which Pence was presiding.

Everything italicized below is new.

86d. The Defendant specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

[snip]

90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.

91. A mass of people-including individuals who had traveled to Washington and to
the Capitol at the Defendant’s direction-broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

93. At 2:13 p.m., after more than an hour of steady, violent advancement, the
crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House also was forced to recess.

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

96. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

This narrative ties the mob, particularly the storming of the Senate chamber, directly to Trump’s goal of interrupting the counting of the electoral certificates. This instrumentality was always a part of the indictment — has been part of this investigation since no later than January 5, 2022. But Roberts’ dual interventions in the January 6 prosecutions forced Smith and crime scene prosecutors working under US Attorney Matthew Graves to make it far more explicit.

A significant number of mobsters either knew the import of the certificates ahead of time, and/or heard Trump describe the goal at the Ellipse, and when they stormed the Capitol, assaulted cops, and occupied the space that the Vice President had only just evacuated, they had the goal of preventing the authentic certificates from being counted.

And Jack Smith is making this argument before Judge Chutkan even as other prosecutors are making a parallel argument before other judges.

As DOJ laid out in their filing describing how they plan to retry Matt Loganbill (who joined Alex Jones as he opened a second, eastern front on the attack on the Capitol) under the new Fischer standard, Loganbill had the goal of getting Pence to shred the envelopes as early as December 20, 2020, and after he stormed the Capitol, he headed towards the Senate where he believed they were counting the vote.

  • On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
  • On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
  • On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
  • On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

Here’s how DOJ plans to prove that the Chilcoats, Shawndale and Donald, planned to prevent the votes from being counted by occupying the Senate.

[A]t approximately 2:46 p.m., the defendants watched rioters attempt to break open windows, then entered the Capitol building itself through a broken-open door on the building’s northwest side. A cell phone video shows that, after they learned of the breach, Donald Chilcoat cautioned Shawndale Chilcoat that they should let other rioters enter first. That way, if the police deployed pepper spray, those other rioters, and not the Chilcoats, would bear the brunt of it. In other words, the defendants knew they were not welcome, and they knew their entry might be met with force. After the defendants entered the building, they traveled to the Senate Chamber – the very place where the proceeding was taking place – and joined other rioters in occupying it. There, they took photographs and remained in the chamber while other rioters searched desks belonging to the former Vice President and to Senators.

Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote. And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider. On January 4, 2021, via Facebook, a friend of Shawndale Chilcoat told her to “give Rob Portman a call and let him know what you think of him not rejecting the fraudulent votes.” Shawndale Chilcoat affirmed “just did.” Then, late on January 5 or early on January 6, Shawndale Chilcoat posted a message to Facebook saying that “[Vice President] Pence is stating he can not reject the votes.” On January 7, 2021, after the riot, Shawndale Chilcoat admitted “we were just trying to stop them from certifying the votes and didn’t know they were already gone.” On the same day, she also bragged, “[o]k so antifa is being blamed for breaking windows and storming congress. Um no, it was us I was with them and couldn’t be more proud.”

Here’s one of the most interesting things about yesterday’s superseding indictment.

The efforts to address Fischer are intertwined. While DOJ might be able to sustain some obstruction cases against rioters based on their own communications, and while Jack Smith might rescue this indictment with a focus on the effort to create fake elector certificates, Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.

Jack Smith did things (describing that Trump was in his private Dining Room, not the Oval Office, noting that he sent the threatening Tweet with no assistance, labeling the rally a privately-funded speech, labeling Trump and Pence as candidates) that increase his chances of overcoming the presumption of immunity that John Roberts invented. But a number of judges (and some juries) are going to have to buy that a handful of members of the mob stormed the Capitol, and especially the Senate, with the intent of making it impossible to count vote for Joe Biden.

Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).

DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.

They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.

If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.

If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.

Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.

But doing so would clarify the absurdity of such a ruling.

Correction: Kyle Cheney reports that this is a grand jury seated last year. It has indicted other Jan6ers and so could do any 1512 indictments that require superseding.

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Originally Posted @ https://emptywheel.net/page/19/