Recent reporting suggests that the CIA — more than Trump’s other top intelligence advisors — continues to give the President unvarnished advice. And by yoking that advice to spectacular covert operative success (and probably a good deal of boasting to the press), the CIA seems to be building value with Trump and his stupider advisors (with the exception of the deliberately stupidest, Steve Witkoff).

Remain in Ukraine

Take Ukraine. A recent profile of how the US betrayed Ukraine describes the CIA has remained there fighting.

But there was a counternarrative, spooled out largely in secret. At its center was the C.I.A.

Where Mr. Hegseth had marginalized his Ukraine-supporting generals, the C.I.A. director, Mr. Ratcliffe, had consistently protected his own officers’ efforts for Ukraine. He kept the agency’s presence in the country at full strength; funding for its programs there even increased. When Mr. Trump ordered the March aid freeze, the U.S. military rushed to shut down all intelligence sharing. But when Mr. Ratcliffe explained the risk facing C.I.A. officers in Ukraine, the White House allowed the agency to keep sharing intelligence about Russian threats inside Ukraine.

CIA didn’t just remain in Ukraine collecting intelligence. They’ve played a role in Ukraine’s spectacular success in using drone attacks to degrade Russia’s security.

In June, beleaguered U.S. military officers met with their C.I.A. counterparts to help craft a more concerted Ukrainian campaign. It would focus exclusively on oil refineries and, instead of supply tanks, would target the refineries’ Achilles’ heel: A C.I.A. expert had identified a type of coupler that was so hard to replace or repair that a refinery would remain offline for weeks. (To avoid backlash, they would not supply weapons and other equipment that Mr. Vance’s allies wanted for other priorities.)

Russia no doubt understands the CIA remains intelligent (heh) and focused on its original adversary. When they recruited Witkoff to manage Trump’s capitulation, they specifically ordered him not to bring CIA.

Steve Witkoff, a billionaire real-estate developer and longtime golfing partner of Donald Trump, was just days into his job as the new president’s special envoy to the Middle East when he received a tantalizing message from the crown prince of Saudi Arabia.

Vladimir Putin was interested in meeting Witkoff—so interested that he might consider releasing an American prisoner to him. The invitation came from a Kremlin moneyman named Kirill Dmitriev, using the de facto Saudi ruler, Mohammed bin Salman, as an intermediary.

There was just one thing: Witkoff would be expected to come alone, without any CIA handlers, diplomats or even an interpreter, a person familiar with the outreach said.

And Witkoff, obedient to Putin’s demands, continues to refuse CIA briefings.

Witkoff has declined multiple offers from the CIA for a briefing on Russia.

[snip]

Ahead of his trip, the CIA offered to brief Witkoff; he declined. Nor was he accompanied by an interpreter: He had been told that Russia’s president wouldn’t allow him to bring another person into the meeting.

A White House official said he participated in multiple briefings before his first trip to Russia, including Trump’s intelligence briefing. The CIA regularly briefs him on other issues like Gaza—but not Russia.

Inform Trump that Ukraine did not strike Russia

The thing is, the ability to provide accurate intelligence and (I assume this was more important) really cool attacks that make the attacker look strong appears to be increasing the CIA’s value to Trump.

Not only did CIA conclude (unsurprisingly) that Putin was lying when he recently claimed that Ukraine had attempted to target his residence,

The CIA has assessed Ukraine was not targeting a residence used by Russian President Vladimir Putin in a recent drone attack in the north of his country, according to US officials, undercutting an assertion the Russian leader had made to President Donald Trump in a Monday phone call.

The CIA’s director John Ratcliffe briefed Trump on the assessment Wednesday, the officials said.

Russia had publicly raised allegations Ukraine attempted to hit Putin’s home Monday, and Trump told reporters Putin had told him of it over the phone. At the time, the president said he was troubled by the reported action, seeming to believe the Russian leader even as Ukraine strenuously denied it was behind any such attack.

“I don’t like it. It’s not good,” Trump said, describing himself as “very angry” upon hearing the claim.

But in the wake of Ratcliffe’s briefing, Trump has repeated that conclusion.

President Donald Trump on Sunday told reporters that U.S. officials have determined that Ukraine did not target a residence belonging to Russian President Vladimir Putin in a drone attack last week, disputing Kremlin claims that Trump had initially greeted with deep concern.

Russian Foreign Minister Sergey Lavrov last week said Ukraine launched a wave of drones at Putin’s state residence in the northwestern Novgorod region that the Russian defense systems were able to defeat. Lavrov also criticized Kyiv for launching the attack at a moment of intensive negotiations to end the war.

The allegation came just a day after Ukrainian President Volodymyr Zelenskyy had traveled to Florida for talks with Trump on the U.S. administration’s still-evolving 20-point plan aimed at ending the war. Zelenskyy quickly denied the Kremlin allegation.

Trump said that “something happened nearby” Putin’s residence but that Americans officials didn’t find the Russian president’s residence was targeted.

“I don’t believe that strike happened,” Trump told reporters as he traveled back to Washington on Sunday after spending two weeks at his home in Florida. “We don’t believe that happened, now that we’ve been able to check.”

Sure, this is just one instance, one single time when Trump believed his own spooks over Putin. But given that Trump first started to parrot obviously bullshit Russian claims eight years ago, in Helsinki, the fact that Trump would accept CIA’s judgment and in the process withstand an obvious attempt to pull Trump back towards capitulation, the instance feels momentous.

Venezuela central to success of operation

And given the CIA’s role in delivering one of the most sadistic thrills of this term, Trump may have no way back.

NYT dedicated an an entire story to describing how CIA (probably assisted by the $50 million reward the FBI offered) recruited someone within Maduro’s government who shared details of the dictators pattern of life.

The American spy agency, the people said, produced the intelligence that led to the capture of Mr. Maduro, monitoring his position and movements with a fleet of stealth drones that provided near constant monitoring over Venezuela, in addition to the information provided by its Venezuelan sources.

The C.I.A. had a group of officers on the ground in Venezuela working clandestinely beginning in August, according to a person familiar with the agency’s work. The officers gathered information about Mr. Maduro’s “pattern of life” and movements.

It is not clear how the C.I.A. recruited the Venezuelan source who informed the Americans of Mr. Maduro’s location. But former officials said the agency was clearly aided by the $50 million reward the U.S. government offered for information leading to Mr. Maduro’s capture.

Given how volatile things are in Venezuela, the CIA may not be able to sustain this person’s loyalty (or life, not least because Trump has made it a lot harder to support assets in various ways).

But for now, the CIA is taking credit for a key role in one of Trump’s only successes — and Trump is boasting of their work (again, in ways that may get assets in the field killed).

Advise Trump to keep regime members

Even before that success, though, CIA advised — and Trump heeded their advice — to stick with a Maduro loyalist to govern after his snatching. WSJ reports that senior Trump officials asked for this analysis weeks before the snatch.

Senior Trump administration officials commissioned the CIA to undertake the analytical assessment and debated it during discussions about day-after plans for Venezuela, the people said. The people familiar with the assessment said they were unsure of the precise date it was produced.

The report was briefed to Trump in recent weeks, according to two of the people.

The assessment didn’t describe how Maduro could lose power, or advocate for removing him, but attempted to gauge the domestic situation in Venezuela in the event that he did, people familiar with it said.

The intelligence report, the people said, cited Rodríguez and two other top Venezuelan regime figures as possible interim rulers who could keep order. The people familiar with the assessment didn’t identify the other two officials, but besides Rodríguez, the two most influential power brokers are Interior Minister Diosdado Cabello and Defense Minister Vladimir Padrino.

This advice may well backfire in the near term. It is undoubtedly the case that a Chavista will have far more ability to sustain order. But particularly given Trump’s belated realization that the oil won’t pay for itself — and the US government will have to subsidize oil development, it will very quickly sour at least some of the people most excited by this invasion, the Cuban-American community.

And ultimately, the Administration has gone all in with Chavistas who rule through brutal repression, as Stephen Miller said in that batshit interview with Jake Tapper where he also repeatedly said that Venezuela is an island.

For those who may be indicted, the best choice they can possibly make is to be part of a constructive decision-making process for the future of Venezuela. The best decision they can make is to cooperate fully and completely with the United States to be part of building this brighter future for Venezuela.

When Miller envisions cooperating with the other people who were indicted, he’s stating that he’s happy to cooperate with Diosdado Cabello, who has been far more involved in the day-to-day trafficking than Maduro, and who is very much an ideological Chavista.

Stephen Miller went on TV — around the same time as Trump said he was going to give welfare to oil companies so they could benefit Venezuela — and bragged about working with precisely the socialists he has defined his entire existence in opposition to.

John Ratcliffe’s CIA, the Deep State! after building Donald Trump’s trust over a year, convinced Stephen Miller to love socialists.

Ratcliffe bypassed the DNI gatekeeper

Meanwhile, Tulsi has remained silent since the snatch.

Leaving people to mock her past statements predicting precisely what is happening in Venezuela.

Tulsi almost lost her job in advance of the Iran strikes after posting a video warning of World War III.

It’s not necessarily a good thing that Tulsi’s skepticism is being supplanted with Ratcliffe’s willingness to go big on covert operations. Both of them suck. Neither can offer wise counsel to Trump (but both likely know Venezuela is not an island).

But at least some reality has begun to seep into Trump’s thinking.

Update, January 8: Sure enough, Bloomberg reports that Tulsi was systematically excluded from the planning for Venezuela.

The White House excluded Director of National Intelligence Tulsi Gabbard from months of planning to oust Nicolas Maduro because her previous opposition to military action in Venezuela cast doubt on her willingness to support the operation, people familiar with the matter said.

The move to cut Gabbard out of the meetings was so well-known that some White House aides joked that the acronym of her title, DNI, stood for “Do Not Invite,” according to three of the people. They asked not to be identified discussing private conversations. A White House official denied there was any such joke.

As a Democratic congresswoman in 2019, Gabbard said the US needs to “stay out” of Venezuela, and as recently as last month she railed against “warmongers” pushing the US into conflict.

The exclusion was the latest evidence of long-running tension over Gabbard’s role in the Donald Trump administration, and has underscored how the president’s decision to oust Maduro — despite campaigning against starting new wars — has widened fissures not only among his MAGA supporters but also within his team.

Tulsi’s people even pointed to that hilarious tweet to push back on this story.

A senior intelligence official pushed back against the characterization that Gabbard had been excluded, saying she provided intelligence that helped the overall mission, even if it was less operational and more analytical. An ODNI spokeswoman referred Bloomberg to a social media post Gabbard wrote Tuesday lauding servicemembers for the operation’s “flawless execution” of the move to capture Maduro.

“President Trump promised the American people he would secure our borders, confront narcoterrorism, dangerous drug cartels, and drug traffickers,” she wrote. The post broke a days-long silence after other top national security officials cheered the operation in press conferences, TV interviews and on social media.

Stephen Miller’s breeding partner created a worldwide scandal by posting a picture of Greenland as an American flag.

The map from a far right podcaster, however well-connected, was actually less important than that the US President, the same day, told Michael Scherer, “we do need Greenland” because it was “surrounded by Russian and Chinese ships,” a sentiment Trump repeated on Air Force One yesterday.

During our call, Trump, who had just arrived at his golf club in West Palm Beach, was in evident good spirits, and reaffirmed to me that Venezuela may not be the last country subject to American intervention. “We do need Greenland, absolutely,” he said, describing the island—a part of Denmark, a NATO ally—as “surrounded by Russian and Chinese ships.”

Of course, since both Katie Miller and Donald Trump largely parrot what they’ve recently heard, both comments likely reflected the views of Stephen Miller.

Meanwhile, this passage of a story describing how Trump really hasn’t (yet) committed regime change, but instead decapitated the Venezuelan state only to leave Maduro’s cronies in place (for now), attracted a flood of confirmation bias.

Two people close to the White House said the president’s lack of interest in boosting Machado, despite her recent efforts to flatter Trump, stemmed from her decision to accept the Nobel Peace Prize, an award the president has openly coveted.

Although Machado ultimately said she was dedicating the award to Trump, her acceptance of the prize was an “ultimate sin,” said one of the people.

“If she had turned it down and said, ‘I can’t accept it because it’s Donald Trump’s,’ she’d be the president of Venezuela today,” this person said.

I have no doubt Trump was pissed María Corina Machado got the Nobel Prize and he did not. But a Miami Herald story published just six days after Machado’s recognition described that Delcy Rodriguez had been pitching a Madurismo without Maduro via back channels for months.

A group of senior Venezuelan government officials, led by Vice President Delcy Rodríguez and her brother Jorge, who is president of the National Assembly, have quietly promoted a series of initiatives in recent months aimed at presenting themselves to Washington as a “more acceptable” alternative to Nicolás Maduro’s regime, according to people with direct knowledge of the talks.

The proposals, funneled through intermediaries in Qatar, sought to persuade sectors of the U.S. government that a “Madurismo without Maduro” could enable a peaceful transition in Venezuela—preserving political stability without dismantling the ruling apparatus.

According to the sources, Qatari mediators presented to the U.S. two formal proposals this year, one in April and another in September. Both outlined potential governing mechanisms without Maduro in power. In those scenarios, Delcy Rodríguez would serve as the institutional continuity figure, while retired Gen. Miguel Rodríguez Torres, who is currently in exile and is not related to the Rodriguez siblings, would head a transitional government.

The central argument, the sources said, was that the Rodríguez siblings represent a “more palatable” version of so-called chavismo — the socialist ideology named for deceased leader Hugo Chávez — for Washington, since neither has been indicted on narcotrafficking charges by U.S. courts. However, former regime officials— whose accounts have been used by U.S. prosecutors in cases linked to the so-called Cartel of the Suns—have implicated both siblings in logistical support and money laundering operations.

Delcy Rodriguez is also the person who, according to the indictment charging Marco Rubio’s old roomie, former Congressman David Rivera, with acting as an unregistered agent of Venezuela (for which he is due to stand trial next month) who ordered CITGO to serve as a front for the contract. As part of the contract, Rivera lobbied Rubio in 2017 on a Maduro succession plan.

Delcy Rodriguez has been in the thick of such efforts from the moment Trump first became President.

So while the attribution of Trump’s sidelining of Venezuela’s democratic opposition — by a single person “close to the White House” — to the President’s narcissism surely has some truth, I’m more interested in that same story’s report that Stephen Miller may actually take on some of the duties of Viceroy that Trump initially assigned to the Miami-raised Spanish speaking Marco Rubio, not least because that may explain why Trump chose decapitation — retention of the oppressive Maduro regime — over regime change, replacement with a democratic one.

Having dismantled much of the U.S. foreign policy infrastructure since he came to power, Trump depends on a small number of trusted personnel and business associates to handle core issues such as his peace plan in Gaza, negotiations between Ukraine and Russia, and now Venezuela.

The National Security Council staff has been gutted and the administration has yet to nominate an assistant secretary of state to handle the Western Hemisphere.

The White House is weighing giving Stephen Miller, Trump’s deputy White House chief of staff and homeland security adviser, a more elevated role in overseeing post-Maduro operations in Venezuela, according to one person with knowledge of the conversations, who, like others, spoke on the condition of anonymity to discuss sensitive dealings.

Miller has been the architect of the administration’s anti-immigration and border policy, and took a central role in the effort to remove Maduro. He was among the handful of top administration officials flanking the president during the news conference Saturday at Trump’s Mar-a-Lago Club.

War on the Rocks argues that too many people are trying to read Trump’s decision to invade Venezuela as a statement of his ideology, rather than the result of the chaotic fight for influence within his White House.

Many observers of this administration underestimate the power struggle inside the administration and how it scrambles the output. Venezuela has been an interesting case of this. My hypothesis here is that Venezuela has been an outlet of sorts for the hawks, especially Secretary of State Marco Rubio but also others. There has been no sustained appetite for confrontation with Russia or China, and only limited room to maneuver on those fronts without significant escalation risks. Iran and Venezuela, by contrast, offered arenas for hawkish foreign policy.

[snip]

When it comes to predicting the president’s next move, too many politicians and analysts assume coherence where there is division, chaos when there is improvisation, and restraint where there is only selectivity. Trump’s foreign policy behavior emerges not from doctrine but from friction. Venezuela offered a target that felt weak, morally disreputable, geographically proximate, and manageable.

Under Trump, foreign policy outcomes are less the product of grand strategy than of episodic alignment. Observers should stop asking whether a given action is consistent with Trump’s supposed beliefs and start asking whether it is legible to him as fast, dominant, and containable. They should pay closer attention to intra-administration dynamics and to how ideas persist even when not immediately acted upon. Otherwise, the failure to predict Venezuela will not be an outlier.

Given the WaPo report (which came after Viceroy Rubio bombed on the Sunday shows) that Miller will be playing in a key role in America’s new colony, I want to situate the Venezuelan coup in Miller’s own history.

It is my belief — this is a hunch based entirely on observation, not any insider reporting — that Miller made himself indispensable when he helped Trump pull himself together after the Butler assassination attempt. Trump was completely dysfunctional after the near-death experience (I don’t blame him — everyone would be floored by that trauma). I would argue that Trump has never actually reclaimed his poise since then — throughout the campaign, he was already surpassing all decency on his political attacks, and he frequently got lost on the campaign trail, including his sundowning episode on the campaign trail. Everything people point to now as proof that he is unfit to be President was evident on the campaign trail. But Trump buried his collapse under ever grandiose fascist theater, much of it orchestrated by Miller, leading up to Trump’s fascist rally at Madison Square Garden, and shortly after, to election victory.

Whether or not that’s the case, it is clear that in the same period, Miller started laying the groundwork to use Venezuela as a propaganda foil for his assault on democracy, which I documented here.

• 2023: Miller decides invoking the Alien Enemies Act will be a nifty way to deport people without due process.
• September 2024: right wing propagandists stoke claim that Aurora, CO has been invaded by Tren de Aragua.
• October 11, 2024: Miller stages a hate fest in Aurora.
• October 18, 2024: After Tim Walz and others debunk Miller’s lies, he accuses them of defending gang members.
• February 9, 2025: One of Miller’s earliest high profile raids targets Aurora but nets just a single TdA member.
• February 26, 2025: The IC debunks Miller’s false claims about TdA.
• March 14, 2025: Trump nevertheless relies on those lies while invoking the Alien Enemies Act.
• March 16, 2025: DHS unloads planes of mostly innocent Venezuelan men in defiance of order from Judge James Boasberg.
• March 21, 2025: Trump claims he’s not the one who signed the AEA invocation.
• April 2025: WaPo reports that the NIE also debunked Miller’s false claims about TdA.
• April 10, 2025: SCOTUS rules Trump has to make some effort to get Kilmar Abrego back.
• April 14, 2025: Performance art with Nayib Bukele in Oval Office.
• April 19, 2025: SCOTUS halts an AEA deportation order in process.

But then, on July 18, 2025, Trump swapped Venezuelans from CECOT for 10 Americans in Venezuela, seemingly dealing Stephen Miller a major defeat in his plan to rely on AEA.

 

 

I questioned why that happened here. And on the same day, NYT provided what is in retrospect even more critical background, a batshit insane story I glossed here. As the entire CECOT drama was proceeding, Trump was dicking around the Miami Hispanic community, which was clamoring to pressure Maduro, first halting then renewing Chevron’s Venezuela license.

• January 31: Maduro makes a deal with Grenell.
• February: Cuban-American Members of Congress (CAMC) pressure Trump to pull the Chevron license, which he does in late February (possibly between the time Rubio signs the deal with Bukele and the day 200 mostly-innocent men are loaded on planes?).
• Chevron CEO Mike Wirth notes that if Chevron can’t export Venezuela’s oil, China will do so.
• CAMC learn that Trump might reverse his decision, so threaten to vote against the Big Ugly Bill.
• Stephen Miller pitches Trump on murderboats.
• Trump lets Chevron license expire on May 27.
• CAMC vote to pass Big Ugly.
• Around the same time Trump considers a pardon for convicted drug kingpin Hernández, Marco Rubio sells Trump on a claim that Maduro is a drug kingpin.
• July: Based in part on Wirth’s China argument, Trump reverses course, again, on Chevron license, Maduro accepts the CECOT prisoners and releases 10 Americans, including a triple murderer.

Trump’s flip-flopping over the Chevron license would lead up to Trump’s command, ten days before the actual invasion, that oil companies prepare to invest in Venezuela if they want compensation for equipment Maduro seized.

But we know that, after Miller first pitched Trump on drone strikes in Mexico, and then he and Rubio (Miller to support his fascist project including hopes to return to using the AEA declaration, Rubio to cater to Miami’s Cuban-American desires) pitched Trump to instead attack Venezuelan-related drug trafficking. On July 25 — a week after returning the hundreds of mostly innocent men to Venezuela — Trump signed an order to begin the murderboat campaign, with murderboat strikes beginning in September. That same day, Marco Rubio pretended this was all about the election Maduro stole last year. Another week later, Pam Bondi upped the reward to help capture Maduro — $50 million we don’t yet know whether has been claimed.

This would have been the period when CIA and Delta Force started practicing the snatch of Maduro.

According to a new WSJ story, it wasn’t yet a foregone conclusion that Trump would approve the attack. Maduro remained dancing in videos that reported inflamed Trump, and dancing in negotiations to leave peacefully (even as Delcy Rodriguez was working back channels to assume power in his wake).

• October 7: CNN reveals Trump has a covert finding authorizing strikes on cartels.
• October 10: Machado wins Nobel Prize.
• October 15: Trump confirms he has signed a finding authorizing strikes on cartels.
• October 16: Alvin Holsey announces his retirement.
• November 16: Ford carrier group arrives in the Caribbean.
• December 1: Trump pardons Juan Orlando Hernández, whose crimes include shipping drugs originating in and protected by Venezuela.
• December 10: Trump starts seizing oil tankers; Machado arrives in Oslo just after the prize is awarded.
• December 23: Maduro rejects offer to exile in Turkey.
• Roughly December 25: Trump orders oil companies to prepare to invest in Venezuela.
• December 29: CIA strikes a loading facility in Venezuela.
• Unknown date: DOJ supersedes existing indictment against Maduro, shifting emphasis (without much substantiation) from Cartel de los Soles to Tren de Aragua, and including Maduro’s wife and son.
• January 3: Trump snatches Maduro.

And immediately after Trump’s Administration imagined that they had proven their concept of decapitation without regime change, Trump started listing other places he would attack, including Cuba — high on Rubio’s list — but also Mexico (which Miller had had to defer earlier), Colombia, and Greenland.

If Marco Rubio had unilaterally won these battles, the chances would have been greater for genuine regime change; and his failure to deliver may soon sour his constituency on the snatch.

That this was, at least for the moment, decapitation, suggests Miller presided in the end.

After all, Trump also immediately likened the snatch operation to Miller’s domestic efforts to subjugate both civil society, including universities, law firms, and hospitals treating trans children, but also entire blue states, with paramilitary invasions launched in the name of deportation.

Miller’s goals are to demand subservience from everyone on threat of invasion, if not death, the stated means of keeping Delcy Rodriguez on track.

In the end, Stephen Miller is perfectly happy to get in bed with proud socialists, it turns out, so long as he can appropriate their authoritarian tools to his own ends.

As I’ll explain below (and mapped in this table), the superseding indictment against Nicolás Maduro and his wife unsealed yesterday is a more political document than the one that first charged Maduro in 2020. One important difference lies in how DOJ attempted to claim Maduro is not the leader of Venezuela, which will be a key element required to overcome any immunity claim Maduro will surely invoke.

Before I explain the differences between these indictments, let me stress that both are real indictments, documenting decades of corruption and cooperation with drug traffickers and terrorists. Prosecutors worked hard to pull them together and investigators (in the US and around Latin America) and sources no doubt risked their lives to make it possible.

The charges remain the same as in 2020

Both indictments charge the same four crimes:

• Narco-Terrorism Conspiracy (21 USC 960a)
• Cocaine Importation Conspiracy (21 USC 963)
• Two counts of use of machine guns or destructive devices in furtherance of the conspiracies (18 USC 924)

The latter charges, charging Maduro for possessing machine guns, have attracted some mockery, including from me. DOJ is at the same time arguing that DC must allow semi-automatic weapons and at the same time charging a foreign leader with possessing machine guns. The charges are there (and were put there years ago) because they’re a way to get significant sentencing enhancements for other crimes. The presentencing memo for Hugo Armando Caraval-Barrio, who was charged with Maduro in 2020 and pled guilty in June, added so many sentencing enhancements they’re having a multi-day hearing later this month to fight about which ones apply. But given the evolution of gun prohibitions in the US since Bruen (issued in 2022), Maduro may try to challenge this charge, though Caraval-Barrio pled to those same charges in June.

DOJ includes Sinaloa, los Zetas, and Tred de Aragua for reasons that likely have to do with Stephen Miller’s fever dreams

In addition to adding overt acts that happened since 2020, the Narco-Terrorism Conspiracy charged in the newly unsealed indictment is interesting — and may have further significance — because it added several new cartels that have been deemed terrorist organizations last year. The 2020 indictment focused on FARC, the left wing Colombian terrorist organization that trafficked drugs, and Cartel de Soles (the vague name used for Maduro’s corruption). But in the last year, the Trump Administration has, for the first time (and controversially), designated drug cartels that engage in extreme violence as terrorist organizations. So the new indictment names not just FARC and ELN — Colombian terrorists whom Maduro gave shelter — but Sinaloa and the Zetas, along with Tren de Aragua.

24. It was a part and an object of the conspiracy that NICOLAS MADURO MOROS, DIOSDADO CABELLO RONDON, and RAMON RODRIGUEZ CHACIN, the defendants, and others known and unknown, would and did engage in conduct that would be punishable under Title 21 , United States Code, Section 841 ( a), if committed within the jurisdiction of the United States, to wit, the distribution of, and possession with the intent to distribute, five kilograms and more of mixtures and substances containing a detectable amount of cocaine, knowing and intending to provide, directly and indirectly, something of pecuniary value to a person and organization that has engaged and engages in terrorism and terrorist activity (as defined in Title 8, United States Code, Section 1182(a)(2)(B)), or terrorism (as defined in Title 22, United States Code, Section 2656f(d)(2)), to wit, the following organizations that have been designated by the United States Secretary of State as FTOs pursuant to Section 219 of the INA, during times relevant to this Superseding Indictment: FARC, FARC-EP, Segunda Marquetalia, ELN, TdA, the Sinaloa Cartel, CDN, also known as the Zetas, and each organization’s members, operatives, and associates, having knowledge that such organizations and persons have engaged and engage in terrorist activity and terrorism, in violation of Title 21, United States Code, Section 960a. [my emphasis]

This is one of the things I view as political. There’s far more substance behind the FARC allegations than the Sinaloa and Zetas ones. The Zetas allegation relies on the Zetas’, working with unnamed Columbian traffickers, use of Venezuelan ports from 2003 to 2011. The Sinaloa allegation relies on Caraval-Barrio’s protection of Chapo Guzmán in 2011. Both those allegations took place long before Marco Rubio included the Mexican cartels in his new designations. But by including them in this indictment, DOJ makes this application of such crimes applicable in Mexico, an ominous inclusion given Trump’s overt threats to pull the same kind of invasion in Mexico next.

The Tren de Aragua is likewise thin. In the 2020 indictment, two FARC leaders were included as co-conspirators, but that reflected a sustained relationship with Maduro as laid out in the overt acts. The TdA inclusion here relies on a similar move, including its leader, Hector Ruthsenford Guerrero Flores as a co-conspirator. But his inclusion relies on two overt acts that don’t involve Maduro: Guerrero’s actual trafficking with someone not alleged to be part of this conspiracy, and comments made in a Venezuelan prison in 2019. (These may be the comments that US intelligence services have deemed to be unreliable.)

f. Between approximately 2006 and 2008, HECTOR RUSTHENFORD GUERRERO FLORES, a/k/a “Nifio Guerrero,” the defendant, worked with one of the largest drug traffickers in Venezuela, Walid Makled. Members of the Venezuelan regime helped protect Makled’s cocaine shipments that were transported from San Fernando de Apure, Venezuela, to Valencia, Venezuela, and were then sent by plane from the Valencia international airport to Mexico and other locations in Central America for eventual distribution to the United States. Between in or about 2008 and in or about 2009, GUERRERO FLORES also provided another major Venezuelan drug trafficker with protection for cocaine shipments moving through Venezuela, including by providing armed men who carried, among other automatic weapons, AK47s, MP5s, and AR-15s, as well as grenades. At times, GUERRERO FLORES personally accompanied large cocaine loads as they were guarded by the teams of armed men, en route to airports or airstrips for transport north and eventual distribution to the United States. GUERRERO FLORES was paid a fee per kilogram of cocaine transported or received and he sometimes received an interest in portions of these massive cocaine shipments in lieu of payment. The traffickers that GUERRERO FLORES worked with moved thousands of kilograms per shipment, multiple times per month, resulting in the distribution of hundreds of tons of cocaine to the United States. In or about 2009, Makled was charged with narcotics offenses in this District and is a fugitive.

[snip]

o. In or about 2019, TdA’s leader, GUERRERO FLORES, discussed drug trafficking with an individual he understood to be working with the Venezuelan regime. Over multiple calls, GUERRERO FLORES offered to provide escort services for drug loads, explaining that GUERRERO FLORES and TdA had control of the coastlines of Venezuela’s Aragua State. GUERRERO FLORES, speaking from TdA’s base of operations in Tocor6n Prison, explained that TdA could handle the logistics of every aspect of the drug trade, including the use of storage compartments that GUERRERO FLORES called “cradles” located on a beach in Aragua State. In doing so, GUERRERO FLORES confirmed TdA’s ability to protect over one ton of cocaine.

That is, neither is TdA necessary to substantiate the narco-trafficking charges, which are well-substantiated based on protection of FARC, nor is the substance of TdA’s inclusion all that convincing.

At all.

But no doubt Stephen Miller will use this — a grand jury finding probable cause tying TdA to Maduro — to attempt to renew his Alien Enemies Act deportations.

Adding the family, leaving behind the key co-conspirator

On top of swapping FARC co-conspirators for a TdA one, the newly unsealed indictment adds Maduro’s wife and son as co-conspirators.

The inclusion of Maduro’s son is better substantiated. The indictment alleges that his plane was used to ship drugs, he shipped drugs to Miami, and he met with FARC (though neither he nor his mother are included in the narco-trafficking charge).

The inclusion of Cilia Maduro — who was shipped to SDNY along with her husband — rests on her allegedly accepting a bribe in 2007 to broker a meeting between a trafficker and Venezuela’s corrupt top anti-drug cop.

b. In approximately 2007, CILIA ADELA FLORES DE MADURO, the defendant, attended a meeting in which FLORES DE MADURO accepted hundreds of thousands of dollars in bribes to broker a meeting between a large-scale drug trafficker and the director of Venezuela’s National Anti-Drug Office, Nestor Reverol Torres. The drug trafficker later arranged to pay a monthly bribe to Reverol Torres, in addition to approximately $100,000 for each flight that was transporting cocaine to ensure the flight’s safe passage, a portion of which was then paid to FLORES DE MADURO. In or about 2015, Reverol Torres was charged with narcotics offenses in the Eastern District of New York and is a fugitive.

But prosecutors likely included Maduro’s family — and snatched Cilia along with her spouse — to acquire leverage against him.

One more point about alleged co-conspirators. In the wake of yesterday’s invasion, Diosdado Cabello Rondón, who is incorporated into the narco-trafficking charge and was already in 2020, was the first person to call for calm, calling the Americans terrorists.

At the crack of dawn, Diosdado Cabello, the regime’s second-in-command, appeared on state-run Venezolana de Televisión, clad in tactical vest and helmet and surrounded by members of the political police. Cabello called the U.S. attack “treacherous and vile” and urged his supporters “not to lose their composure, to avoid despair.” “Avoid situations that favor the invading enemy,” he said. Cabello questioned the role of “international organizations” in this crisis, accusing them of being “complicit in a massacre of civilians.” The leader addressed his men on camera with the two central slogans of the regime’s security forces: “Always loyal, never traitors” and “To doubt is treason.”

This analysis of the aftermath notes that you’d have to take out more of Maduro’s aides, including Cabello, to defeat his government.

For more than a decade, real power in Venezuela has been held by a small circle of senior officials. Analysts and officials say though that the system depends on a sprawling web of loyalists and security organs, fueled by corruption and surveillance.

Within the inner circle, a civilian-military balance reigns. Each member has their own interests and patronage networks. Currently Rodriguez and her brother represent the civilian side. Padrino and Cabello represent the military side.

This power structure makes dismantling Venezuela’s current government more complex than removing Maduro, according to interviews with current and former U.S. officials, Venezuelan and U.S. military analysts and security consultants to Venezuela’s opposition.

“You can remove as many pieces of the Venezuelan government as you like, but it would have to be multiple actors at different levels to move the needle,” said a former U.S. official involved in criminal investigations in Venezuela.

A big question mark surrounds Cabello, who exerts influence over the country’s military and civilian counterintelligence agencies, which conduct widespread domestic espionage.

“The focus is now on Diosdado Cabello,” said Venezuelan military strategist Jose Garcia. “Because he is the most ideological, violent and unpredictable element of the Venezuelan regime.”

Donald Trump conducted a months-long operation to carry out an arrest, he claims. But somehow they left behind someone alleged to be just as culpable in the headline charges of the indictment, Cabello.

Disavowing democracy in attempting to negate Maduro’s immunity claim

Yesterday, Trump and Marco Rubio claimed that Maduro’s Vice President, Delcy Rodriguez, would do as she was told. Then she went on TV and said Maduro was still the president and Venezuela would never again be the colony of an empire. It’s unclear whether she’s misleading Marco Rubio or the Venezuelan people, or simply trying to find middle ground.

But her claim to authority only comes through Maduro.

And that’s important because, as Oona Hathaway explained this in an interview with Isaac Chotiner, whether or not Maduro is and was a head of state is central to what will surely be an attempt to claim he is immune from all this.

What do you mean, exactly, about his “seizure and indictment”? Venezuela had an election. It was not a free election. He declared himself President, and he’s broadly recognized as the President of Venezuela, but, again, he was not freely elected by the people of Venezuela. That could justify his indictment in an American court?

I should back up. As part of this military operation, at least one of the key goals seems to have been the capture of Maduro and his wife, who have been indicted for criminal charges in the Southern District of New York. The only way they can do that is if they’re claiming that he’s not a head of state, because heads of state get immunity and heads of state are not subject to criminal prosecution in the domestic courts of other states. That’s just a basic rule of international law. The United States has long recognized it.

So you were not saying that the fact that he stole an election per se means you can grab him and try him in an American court but, rather, that if he were not a head of state, that would at least allow for trying him in an American court, which normally would not be the case?

Right. So if he’s not actually a head of state, then head-of-state immunity doesn’t apply. And it’s connected to this broader question of the use of military force in that it may be that they would make a claim—although I haven’t yet seen this—that because he’s not the legitimate head of state that somehow they have a legal authority to use force to grab him. But, again, the two don’t connect. So the problem is that merely saying that he’s not head of state doesn’t then justify the use of military force in Venezuela.

[snip]

So if Maduro goes to trial in an American court, is this going to be a contested legal issue about whether he can even be tried based on whether he is the head of state of Venezuela? Is that something that American courts are going to have to weigh in on?

Yes, it is something that the American courts are going to have to weigh in on. It definitely is the case that his lawyers will make the argument that he’s a sitting head of state at the time that he was seized and that he remains the sitting head of state and therefore, under international law and under U.S. law, he should be given immunity, which means that he’s not subject to the jurisdiction of U.S. courts and can’t be criminally charged. This has come up once before with the criminal indictment of Manuel Noriega, the former leader of Panama, when the U.S. invaded Panama in 1989 and seized Noriega and then brought him back to the United States and indicted him for drug smuggling and money laundering.

Back then, Noriega argued that he enjoyed head-of-state immunity, and the executive branch argued that he didn’t because the United States had not recognized him as a legitimate leader of Panama. That gives us a hint as to what is likely to happen in this case. My guess is that the United States will argue that it’s never recognized Maduro as a legitimate leader of Venezuela and therefore he doesn’t receive immunity. And the courts are going to be in the position of having to decide whether they defer to the executive branch’s determination that he’s not head of state or whether they make an independent assessment of his legitimacy as a leader of Venezuela.

How did the Noriega case play out?

In the Noriega case, the courts deferred to the executive branch. They said they were going to accept that the executive branch said that he’s not a constitutional head of state, and therefore he can, in fact, be prosecuted.

Seems quite possible they will do so again now.

It seems likely they’re going to do the same thing. I mean, this is a weaker argument on the part of the executive branch.

Both indictments attempt to deal with this issue. The 2020 one does so by pointing to the US’ 2019 endorsement of Juan Guaidó.

In or about 2018, MADURO MOROS declared victory in a presidential election in Venezuela. In or about 2019, the National Assembly of Venezuela invoked the Venezuelan constitution and declared that MADURO MOROS had usurped power and was not the president of Venezuela. Since in or about 2019, more than 50 countries, including the United States, have refused to recognize MADURO MOROS as Venezuela’s head of state and instead recognized Juan Guaidó as the interim president of Venezuela. In or about January 2020, the United States Department of State certified the authority of Guaidó, as the interim president of Venezuela, to receive and control property in accounts at the United States Federal Reserve maintained by the Venezuelan government and the Central Bank of Venezuela.

The Trump Administration went all-in on declaring Guaidó interim president and … that went nowhere.

This equivalent paragraph in the newly unsealed indictment doesn’t say who runs Venezuela.

5. NICOLAS MADURO MOROS, the defendant, a Venezuelan citizen, was previously the President of Venezuela, and is now, having remained in power despite losses in recent elections, the de facto but illegitimate ruler of the country. MADURO MOROS also previously held a seat in Venezuela’s National Assembly between in or about 2000 and in or about 2006, acted as the Venezuelan Minister of Foreign Affairs between in or about 2006 and in or about 2013, and acted as the Vice President of Venezuela in or about 2013. MADURO MOROS succeeded to the Venezuelan presidency after former President Hugo Chavez died in or about 2013 and, during MADURO MOROS’s own presidency, continued to participate in cocaine trafficking with drug dealers and narco-terrorist groups. In or about 2018, MADURO MOROS declared victory in a disputed and internationally condemned presidential election in Venezuela. In or about 2019, Venezuela’s National Assembly invoked the Venezuelan constitution and declared that MADURO MOROS had usurped power and was not the legitimate President of Venezuela. Nonetheless, MADURO MOROS continued to exercise the powers of the Venezuelan presidency, causing more than 50 countries, including the United States, to refuse to recognize MADURO MOROS as Venezuela’s head of state. In or about 2024, Venezuela held another presidential election that was again widely criticized by the international community, in which MADURO MOROS declared himself the winner despite widespread condemnation.

Most independent observers believe Edmundo González won last year’s election. María Corina Machado just won a Nobel Prize as the leader of the opposition (though she claims González is the rightly elected President).

Yet not only doesn’t this indictment name either of them, yesterday Trump said of Machado, “She’s a very nice woman, but she doesn’t have the respect.”

I’ll leave it to experts like Hathaway to unpack whether Trump’s explicit denial of those with a real democratic claim to power has any impact on an immunity claim that Maduro is sure to mount. Her observation that SCOTUS, especially this SCOTUS, will likely defer to the Administration.

I’m simply observing that this indictment was designed, from the start, to rely on illegitimate claims about the lawful president in Venezuela. It had puppet power built into it.

Again, none of this says that the guts of this indictment are suspect. They’re not.

But it’s the packaging of it — a shift that occurred since Trump last indicted Maduro in 2020 — that could have significantly broader repercussions.

Donald Trump conducted a military invasion of Venezuela purportedly in service of arresting Nicolás Maduro to stand trial in the US.

The indictment against him (I assume it has been superseded since he was added in March of 2020) alleges that he personally was involved in negotiating FARC-sourced cocaine shipments.

5. While pursuing these and other objectives, NICOLÁS MADURO MOROS, the defendant, negotiated multi-ton shipments of FARC-produced cocaine; directed that the Cártel the Los Soles provide military-grade weapons to the FARC; coordinated foreign affairs with Honduras and other countries to facilitate large-scale drug trafficking; and solicited assistance from FARC leadership in training an unsanctioned militia group that functioned, in essence, as an armed forces unit for the Cártel de Los Soles.

Maduro’s former military intelligence head, Hugo Armando Carvajal Barrios, pled guilty in June. There’s no sign, at least not public, that Carvajal Barrios is cooperating (they’re holding a hearing this month before Judge Alvin Hellerstein because he claims not to have pled to the individual elements of the offense from which SDNY crafted an onerous sentence).

Meanwhile, I have already pointed to this excellent Bloomberg piece on the similar efforts SDNY made to bring former. President of Honduras Juan Orlando Hernández to justice. It describes how JOH’s family pitched Trump on a pardon in part by promising that with his pardon (and the return of his party to power, as has happened), Honduras would return the autonomous zones Trump allies like Peter Thiel have championed.

By July, the family and their lawyers had written an 18-page draft outlining some of the ways they might appeal to Trump’s pardon czar, Alice Marie Johnson. From Trump, they’d learned the language of modern political grievance: “Just like President Trump, President Hernández is a victim of lawfare, waged by the Biden administration.” If pardoned, Hernández would return to Honduras and dedicate himself to building a political movement in Latin America aligned with Trump’s foreign policy ambitions. The memo noted that Hondurans would go to the polls on Nov. 30 to elect a new president, and it suggested a timely pardon could energize conservatives in a region threatened by “radical left” regimes, including China and Venezuela. (Johnson didn’t respond to a request for comment.)

But it wasn’t only Trump who could benefit from a pardon. Castro, Hernández’s successor, repealed the legal framework that had established the country’s semi-autonomous economic development zones, including Próspera. That led the Honduran supreme court to declare those zones unconstitutional, triggering still-unresolved lawsuits from their investors. (Próspera continues to operate.) The memo asserted that Castro’s administration “has effectively stolen billions” from the financial backers of Próspera. The memo named Peter Thiel (“a longtime collaborator of Vice President J.D. Vance”) and Marc Andreessen (“who also donated millions to ensure that Trump’s policy goals could be achieved”).

A timely pardon—especially one delivered before the election—might remedy all that. It could also give Trump one more regional ally against the “narco-dicatorship” in Venezuela, where the Trump administration in September would begin launching military strikes against boats suspected of carrying drugs.

This kidnapping of Maduro is not about drug trafficking, though the indictment against him is real.

It’s about getting a piece of the action.

Update: Here’s the final paragraphs of a 1989 OLC opinion that then OLC head and future AG when Maduro was first indicted Bill Barr signed to rationalize the Panama invasion, on which this was surely modeled.

IV. Conclusion This Office concludes that at the direction of the President or the Attorney General the FBI may use its statutory authority under 28 U.S.C. § 533(1) and 18 U.S.C. § 3052 to investigate and arrest individuals for violations of applicable United States law, even if those actions depart from customary international law or unexecuted treaties. Moreover, we conclude that the President, acting through the Attorney General, has inherent constitutional authority to deploy the FBI to investigate and arrest individuals for violations of United States law, even if those actions contravene international law. Finally, we conclude that an arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment.

35 There is some doubt whether the Fourth Amendment standard includes a requirement o f domestic law authority to arrest. The 1980 Opinion concluded that it does 4B Op O L C at 553-54. That Opinion relied principally on United States v. D i Re, 332 U S 581, 589-92 (1948), a case involving exclusion o f evidence obtained incident to an unauthorized arrest by federal officials. But it is not clear that Di Re was a Fourth Amendment decision, and it is also unclear that the-Constitution requires statutory or other authonty to arrest. See 1 Wayne R. LaFave, Search- and Seizure § 1 5(b) at 107 (2d ed. 1987) (concluding that D i Re is not a Fourth Amendment case but “simply an instance of the court utilizing its supervisory power to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional federal arrest”). Cf George E Dix, Fourth Amendment Federalism: The Potential Requirement of State Law Authorization for Law Enforcement Activity, 14 Am J. Crim L. 1, 10 (1987) ( “There is considerable doubt. as to whether the Court has . . committed itself to the position that the fourth amendment reasonableness o f an arrest depends upon the existence o f state Jaw and the arrest’s validity under that law.”). In any event, as we have previously stated, we believe that authority exists for the Executive to authorize the FBI to make arrests in foreign countnes 3r’As to an arrest in a non-public place, there are circumstances in which an arrest warrant is required. Payton v New York., 445 U S 573, 576 (1980). While presumably an arrest warrant often could be obtained, there are limitations to the extraterritonal junsdiction o f the magistrate’s writ See 18 U.S C §§ 3041-3042 Commentators have questioned, however, whether the warrant requirements o f Payton and other cases should apply overseas. See Saltzburg, supra, 20 Va J Int’l L. at 762; Stephan, supra, 20 Va. J Int’l L at 792 n.44 37 We note that fear that our agents will be extradited for violations of foreign law during an enforcement operation authonzed by the President or the Attorney General is not a warranted concern The Secretary o f State always has discretion to refuse to extradite, even if the offense is covered by an extradition treaty entered into with another country See 18 U S C. § 3186 (Secretary of State “may” extradite the person committed under section 3184); Stndona v Grant, 619 F.2d 167 (2d Cir 1980), Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir 1965). 183

WILLIAM P. BARR

Assistant Attorney General

Office of Legal Counsel

Update: Here’s the superseding indictment.The machine gun allegations are far sillier than I imagined.

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Back before everyone checked out for the holidays, I did an inventory of the progress we’ve made in four ways to fight fascism (in comments ApacheTrout reminded I should have the courts in there too).

1. The Erica Chenoweth rule, which says that if you can get 3.5% of a population in the streets, it often leads to regime change.
2. Beginning to peel off four people in the Senate or eight or nine people in the House.
3. Rescuing Republicans from a predictable catastrophe like Democrats did in 2008 and 2020.
4. Waiting until 2026, winning at least one house of Congress, and beginning to rein in Trump that way.

I wrote it intending to kick off the new year with a post of things we can do, or do better. Here we are!

But first, let me explain where I’m coming from. Much of what follows builds on my belief that we’ve been fighting Donald Trump wrong.

Polarization is his superpower. It’s how he has gotten out of every single one of his political jams in the past: by turning his own scandal into a polarizing pivot, thereby turning his own failures and crimes into a matter of tribalism. Once he has done that, he invents some new bullshit story (usually stoking grievance), and getting right wingers to believe it because of that polarization.

This is why I’m such an asshole about the way people serve as data mules for Trump’s tweets: because those damn things are little polarization machines, which always serve to make him the center of attention around which society is re-polarized.

The way to combat someone whose superpower is polarization is not to exacerbate that polarization. It is to use his own tools — grievance and conspiracism — against him.

Back in May, before the Epstein files had created a full-blown crisis for the Trump Administration, Phil Bump and Mike Rothschild wrote about how conspiracism can undermine someone with power (which I added to here).

Think of how important conspiracism and grievance were to (at least per the Robert Draper profile) Marjorie Taylor Greene’s turn against Trump:

• Realizing Trump never returns loyalty
• Discovering Trump was the villain of the Epstein scandal in which she had an unshakeable belief
• Opposing Gaza (probably for horrible Jewish space laser reasons) and crypto currency (for justifiable reasons inflamed by conspiratorial thinking)
• Seeing Trump mock affordability
• After all that (but while she still had her courage), being targeted by Trump mobs
• Packaging that in a morality tale, Christianity, whence she derived moral value

Simplifying and ignoring her potential political ambitions, Trump became the thing everyone suspected was being hidden in the Epstein files, and that led to cognitive dissonance that led MTG to revisit a lot of her other differences with Trump.

So some of my logic, below, is simply to focus on the things that are likely to get Trump supporters or sympathizers to feel betrayed by him including by holding people close to him accountable for shitty things we are pretty sure are going to occur. It includes:

• Treat Epstein as the base layer
• Focus on the Broligarchs and AI
• Emphasize Trump’s loser stench
• Visualize Trump’s corruption
• Brand Trump as the criminal he is
• Hold Stephen Miller accountable for his failures
• Visualize how Stephen Miller took money for cancer research and veterans care to pay for a goon army snatching grandmothers
• Discredit Key Spokespeople
• Use Trump’s claimed opposition to antisemitism against him
• Reclaim disinformation research

One more point about this. This post is not a To Do list for the DNC (though some people on Bluesky will undoubtedly treat it as such). It’s a To Do list for myself, most of all, but one that others can borrow if they find it useful. Many of these things are attentional activities that are about repetition and focus as much as congressional oversight or electoral politics.

These are meant to be stories we can tell, regardless of what someone in Congress or some candidate in Iowa does.

---

Treat Epstein as the base layer

Remember that Marc Caputo column — it was published on December 23 — stating that the Epstein releases could last a whole ‘nother week? On the day that would mark that week, December 30, Devlin Barrett published a story saying that, “The document review” of what is now believed to be 5.2 million documents “is expected to take until at least Jan. 20, according to a person familiar with the matter.” Even if they could finish it by January 20 (they won’t), that’ll just be the first go-around. DOJ has not done what they need to do to document the redactions, so there’ll be demands from Congress for them to do that (with obvious areas — including DOJ names and some deliberative documents specifically included in the law, where they’re in violation), they’ll need to repeat the entire process over again, Congress will begin to bring more legal pressure, and all the while survivors will be pointing out things they missed.

A week, Marc Caputo reported, as if that were credible!

This will go on for some time. This will go on for a very long time.

Still, while the Epstein scandal has been absolutely instrumental in loosing Trump’s grip on things, people are naive in thinking that will be enough. “My friends will get hurt,” Trump predicted, but what does it really mean for Trump’s power that Les Wexner has been implicated in the Epstein scandal as a co-conspirator? What is the use of creating right wing cognitive dissonance about Les Wexner, when Wexner is not the oligarch currently helping Trump destroy the country?

In my opinion, the Epstein scandal is a tool. It undercuts Trump’s ability to grab and redirect attention. It can create moments of cognitive dissonance, as it did for MTG. It is a way to turn Trump’s conspiracism and populism against him and may make other related narrative lines more salient. And if there’s a surprise disclosure — perhaps about Melania’s origin story — all the better. But as you keep the focus on Epstein, remember that there needs to be a direction beyond Epstein as well, a direction which incorporates the oligarchs who are still key players in Trump’s network of power.

Focus on the Broligarchs and AI

The Broligarchs who’ve been a key part of Trump’s power are one way to do that (and that’s before we’ve really gotten into Steve Bannon and Peter Thiel’s ties to Epstein).

Tesla Takedown was one of the most successful campaigns of 2025. At a time when Tesla faced cheaper competitors worldwide, the protests incurred a cost on Musk for his DOGE depredations.

Elon was installed in the White House in significant part by fellow South African “alien invader” David Sacks, who is even more conspiratorial and even more pro-Russian than Musk. Sacks was installed in the White House as a Special Government Employee (who, Elizabeth Warren suggests, has overstayed his welcome) to force a bunch of policy decisions that suck for America but ensure that Broligarchs won’t pay any consequences for their rash business deals. When one or both of crypto and AI crash (this is a really good story on how and why AI will burst), he’ll be there to ensure the government bails them out, as he did after playing a role in the failure of Silicon Valley Bank.

And even as Trump sheds support based on his mockery of affordability, even as MTG split with Trump over that and his support for crypto, Sacks is trying to brand Democrats as being more populist than even Zohran Mamdani is.

Fine. You want Democrats to be the party attending to the needs of working people? You’ve just made the GOP the party of “alien invader” billionaires who got tax cuts as millions lost their health care.

This happened even as AI has become a political liability. It has happened as local groups successfully stave off new data centers. It has happened as more instances of AI-inflamed suicide, murder, and porn — including porn exploiting children — appear. And it happens before the aforementioned crash.

Sacks and the other Broligarchs are going to do something for which they’ll try to dodge accountability. Now is the time to make sure his name comes up as people look for culprits.

Emphasize Trump’s loser stench

Another thing that will lead people to defect is to realize that Trump is a loser. He has done things — like the takeover of the Kennedy Center — that makes it easy to demonstrate he’s a loser in tangible fashion. Better still, every time Trump attaches his name to something, it provides an opportunity to hijack that brand, as comedian Toby Morton auspiciously managed to do by anticipating Trump’s most venal instincts and buying the domain.

The same is true of his businesses. Trump and his entire family is getting rich off the presidency 2.0. But his businesses are built as cons, sometimes Ponzi schemes. The idea is to leverage the loyalty of MAGAts to get them to invest in something, run up its value, only to collapse, leaving the most vulnerable screwed. In the past, at least, the cult effect was such that even MAGAts bilked by Trump associates, as with Steve Bannon’s Build the Wall graft, were reluctant to turn on the fraudsters; that may change. But at the very least, the volatile nature of Trump’s frauds makes it easy to show that as a businessman, he’s a loser.

Visualize Trump’s corruption

While there has been good reporting on Trump’s corruption — see, for example, NYT’s nifty visualization from New Year’s Eve — there has not been a systematic effort to take on his corruption.

Nevertheless, possibly because of the Epstein scandal, a majority of the country does think Trump is corrupt.

That may actually not be in a bad place to be as we move into 2026. That’s because Democrats can make Republican inaction in the face of Trump’s corruption a campaign issue (and then, if it leads to a Democratic sweep in midterms, the electoral buy-in will be in place to do a lot of oversight and defunding of Trump’s corruption).

Trump’s pardons are similar. There’s actually a solid stream of reporting on how corrupt they are, without yet any political direction to it. Democrats running against Republican incumbents — especially in the Senate — should state as presumed that it is the job of Senators to respond to the kind of naked corruption Trump is engaged in.

Where activists can magnify the good reporting on both Trump’s corruption and his pardons is to focus on the victims. This is actually showing up in the reporting on both topics. WaPo focused on the victims of Trevor Milton who might have gotten restitution had Trump not pardoned him. LAT similarly focused on the victims fucked over by Trump’s pardon of David Gentile.

Rosenberg, a retired wholesale produce distributor living in Nevada, has supported Trump since he entered politics, but the president’s decision in November to commute the sentence of former private equity executive David Gentile has left him angry and confused.

“I just feel I’ve been betrayed,” Rosenberg, 68, said. “I don’t know why he would do this, unless there was some sort of gain somewhere, or some favor being called in. I am very disappointed. I kind of put him above this kind of thing.”

Trump’s decision to release Gentile from prison less than two weeks into his seven-year sentence has drawn scrutiny from securities attorneys and a U.S. senator — all of whom say the White House’s explanation for the act of clemency is not adding up. It’s also drawn the ire of his victims.

“I think it is disgusting,” said CarolAnn Tutera, 70, who invested more than $400,000 with Gentile’s company, GPB Capital. Gentile, she added, “basically pulled a Bernie Madoff and swindled people out of their money, and then he gets to go home to his wife and kids.”

This superb Bloomberg story on the extent to which the Juan Orlando Hernández pardon unraveled years of work starts with a murder arranged by the network.

Five minutes later, González was circling a roundabout when a gray van braked in front of him. At the same time, a green SUV crowded his rear bumper. A motorcycle carrying two men emerged on his left. A man on the back of the bike fired six shots through the driver-side window. González’s head slumped toward his shoulder, and he tilted forward, held upright by the seatbelt. He died instantly.

More than a dozen men streamed out of the two vehicles that had sandwiched his Nissan. They scrambled to collect the spent shell casings on the ground, then scattered other casings across the pavement—decoys to complicate ballistics tracing. They jumped back into their vehicles, circled the roundabout and took the same road Julián had just driven down.

When they approached the Slaughterhouse, the gates opened to let them in, then closed behind them.

Every one of these pardons has a victim — and that’s before you get into the people newly victimized by people who’ve been pardoned by Trump, which NYT covered in November and others are tracking as well.

A New Jersey fraudster who was pardoned by President Trump in 2021 was sentenced to 37 years in prison this month for running a $44 million Ponzi scheme, one of a growing number of people granted clemency by Mr. Trump only to be charged with new crimes.

The man, Eliyahu Weinstein, was pardoned by Mr. Trump in 2021 and was re-indicted by the U.S. attorney’s office in New Jersey three years later. He was accused of swindling investors who thought their money was being used to buy surgical masks, baby formula and first-aid kits bound for Ukraine, and a jury convicted him in April of several crimes, including conspiracy to commit securities and wire fraud.

[snip]
Some of those pardoned for their role in the Jan. 6, 2021, riot at the U.S. Capitol have quickly drawn new attention from law enforcement. The group Citizens for Responsibility and Ethics in Washington said in June that at least 10 of the more than 1,500 who were pardoned had been rearrested and charged, and the number has only grown since then.

Earlier this month, a man who was pardoned after having participated in the Jan. 6 attack was charged with sex crimes against two children. Another man whose original sentence Mr. Trump commuted in 2021 was recently sentenced to 27 months in prison after convictions on physical and sexual assault, among other crimes.

These stories provide an important way to explain the costs of Trump’s corruption.

Brand Trump as the criminal he is

And while we’re talking about telling these stories: We must never ever cede the ground of crime to Stephen Miller’s attempt to brand immigrants as criminals.

Trump — a felon who freed hundreds of cop assailants on his first day on the job — has an entire infrastructure devoted to trying to spin brown people as criminal. Every time that infrastructure goes into action, including with the effort to brand Somalis in Minnesota as inherently fraudulent when Trump himself is a serial fraudster, we need to repeat, relentlessly, that Trump is a serial criminal who coddles other criminals.

This is something Gavin Newsom just started doing, with an entire website devoted to cataloging Trump’s crime and that of his pardon recipients.

Do not let a conversation about crime go by without focusing on how much of it Trump does.

Crime, in Trump’s era, is a rich white man’s thing. And while it will take a lot of work to adjust a lot of racist priors, until people start seeing Trump as a criminal it will be far too easy for them to make excuses for him.

Hold Stephen Miller accountable for his failures

I focused on Stephen Miller — and the import of making his failures clear — last week.

The import of shifting how we speak of Miller’s considerable power is clear. That’s true because he frankly has done huge damage, even to Trump’s goals, and well more so to average Americans. He’s someone that people, including Republicans, can scapegoat for Trump’s failures (and they’ll be right). And if we don’t make sure that happens, then he’ll scapegoat brown people.

Again, are Somali day care workers or billionaires systematically defrauding average people the problem? One easy to way to drown out Miller’s case that it’s the former is to make it clear how much he personally has harmed average Americans.

Visualize how Stephen Miller took money for cancer research and veterans care to pay for a goon army snatching grandmothers

Relatedly, particularly as the huge injection of funding Republicans approved last year starts landing at DHS, it will become increasingly necessary to tie the goon squads in the streets to the loss of benefits elsewhere.

We need to make it clear that this is a direct trade. 50,000 ICE goons in, 300,000 other government employees out, including people who cure cancer, help learning disabled kids get through school, protect our National Parks, ensure your Social Security comes on time, and care for veterans.

Christopher Ingraham did a handy graphic to show the trade-off.

Stephen Miller’s dragnet is unpopular in the abstract and wildly unpopular in the lived sense, even — if meekly — among local Republican leaders.

But it still retains support of a big chunk of the population, probably because Trump officials routinely blame their own failures to address American problems on migrants, when as often as not, Trump’s response to immigration is the source of the problem.

America can’t have nice things, like cures for cancer and welcoming public schools, because Republicans in Congress took the money used to pay for those things and gave it to Stephen Miller to use to invade America’s neighborhoods.

Discredit Key Spokespeople

Right wingers like Jonah Goldberg and David French have expressed alarm by an old promo for a 60 Minutes piece (the piece itself was from October) that an influencer reposted yesterday, describing dozens of times when the government lied in court filings.

Judges have caught Trump’s DOJ in several major lies since then. In Chicago, Judge Sara Ellis wrote a 233-page opinion documenting the many lies DHS has told about their Chicago invasion.

And in December, judges in both Kilmar Abrego’s case caught the government obfuscating. In the criminal case, on December 30, Judge Waverly Crenshaw unsealed a December 3 opinion describing how Nashville’s US Attorney lied about how centrally involved Todd Blanche’s office was in demanding Abrego face trial.

The central question after Abrego established a prima facie case of vindictiveness is what information in the government’s control sheds light on its new decision to prosecute Abrego, after removing him from the United States without criminal charges. These documents show that McGuire did not act alone and to the extent McGuire had input on the decision to prosecute, he shared it with Singh and others. (Doc. No. 178-1). Specifically, the government’s documents may contradict its prior representations that the decision to prosecute was made locally and that there were no outside influences. For example, Singh contacted McGuire on April 27, 2025, to discuss Abrego’s case. (See Doc. No. 229 at Abrego-Garcia000001). On April 30, 2025, Singh asked McGuire what the potential charges against Abrego would be, whether the charging document would reference Abrego’s alleged MS-13 affiliation, and asked for a phone call before any charges were filed. (Id. at Abrego-Garcia000007–000008). In a separate email on April 30, 2025, Singh made clear that Abrego’s criminal prosecution was a “top priority” for the Deputy Attorney General’s office (Blanche). (Id. at Abrego-Garcia000037). He then told McGuire to “sketch out a draft complaint for the 1324 charge [making it unlawful to bring in and harbor certain aliens].” (Id.). On May 15th, McGuire emailed his staff that “DAG (Blanche) and PDAG would like Garcia charged sooner rather than later.” (Id. at Abrego-Garcia000060).

And as I’ve already noted, Judge Paula Xinis cataloged the many deliberately ignorant declarations DOJ filed about whether DHS had deportation plans for Abrego when she ruled that he must be released.

Respondents showcased Cantú’s ignorance about the content of his Declaration pertaining to Costa Rica. As the pointed questions of Respondents’ counsel made clear, Cantú’s lack of knowledge was planned and purposeful.

Counsel: So paragraph 4, final sentence [of the Cantú Declaration], do you see where it says the word—the words “certain understandings”?

Cantú: I found it. Yes, I do. I see it.

Counsel: What are the certain understandings referenced in the last sentence?

Cantú: I don’t know . . .

Counsel: What are the “contingencies” referenced in the last sentence?

Cantú: I do not know . . .

Counsel: What are the “interim developments” referenced in paragraph 5?

Cantú: I don’t know.

ECF No. 107 at 26:8–27:12 (counsel for Respondents, Jonathan Guynn (“Guynn”), questioning Cantú). See also id. at 53:8–9 (Guynn, at sidebar with Court, stating “I’ll just say I told you this was exactly what was going to happen,” regarding the witness’ ignorance on Costa Rica as a viable country of removal).

Ultimately, Respondents’ calculated effort to take Costa Rica “off the table” backfired. Within 24 hours, Costa Rica, through Minister Zamora Cordero, communicated to multiple news sources that its offer to grant Abrego Garcia residence and refugee status is, and always has been, firm, unwavering, and unconditional.

It’s a problem that, after huge scoldings like these, right wing critics of Trump don’t understand how much Trump’s people lie — not least because the Supreme Court still credits the most outlandish claims Trump makes, even after they’ve been thoroughly debunked by lower court judges.

Many of these lies are coming from the same people: Stephen Miller, Todd Blanche’s office, DHS spox Tricia McLaughlin, and Greg Bovino.

It is remarkable that so many of these people have been caught lying to courts (or publicly, about people before courts). But it needs to become common knowledge for everyone, so every time Tricia says something, they start from the assumption she’s lying, because she almost always is.

There comes a time when the credibility of systematic liars not named Trump collapse entirely such that every utterance they make discredits the claims they try to sell. Tricia McLaughlin, at least, is close those levels of propaganda, and Stephen Miller is not far behind.

Use Trump’s claimed opposition to antisemitism against him

Within days of his inauguration last year, Trump signed an EO — adding to one he signed in 2019 — claiming to oppose antisemitism. There has been some discussion about the bad faith of this EO and a DOJ lawyer implementing it, Michael Velchik, once wrote a paper from Hitler’s perspective. While it is explicitly targeted at universities (and has been a key tool to attempt to takeover universities), it nevertheless claimed to oppose antisemitism everywhere.

It shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.

This is the kind of statement of principle that can form the basis of political pressure — particularly as the MAGAt movement splinters around the overt antisemitism of people like Nick Fuentes and Candace Owen, and as political opportunists like Ted Cruz attempt to exploit that splinter.

We’re going to have to fight this battle in any case. As part of the revocation of everything Eric Adams did after he was indicted for bribery yesterday, Zohran Mamdani revoked an EO that gave Israel preferential treatment, which Israel is using to stoke division; yet Mamdani preserved the office Adams opened to combat antisemitism.

We need to call out the dripping antisemitism of Trump’s team, from top (at least JD Vance, who refuses to disavow Fuentes) to bottom.

There are two key Trump aides who should be targeted. Most notably, Paul Ingrassia, who had to withdraw his nomination to be Special Counsel after Politico exposed texts in which he confessed to a Nazi streak been installed at GSA instead. In addition, Kingsley Wilson became DOD spokesperson in spite of Neo-Nazi comments. NPR has done good work unpacking these ties.

Reclaim disinformation research

Republicans plan on exporting fascism via US tech platforms.

That’s not new. I’ve been talking about Elon’s plans to use Xitter as a machine for fascism for some time.

But since then, Trump’s minions worked it into the National Security Strategy.

And, in the wake of the EU’s sanctions against Elon Musk for — basically — lying about why I have a blue check, Marco Rubio stripped the visas of five people, including US Green Card holder Imran Ahmed, a long time adversary of Elon’s.

But there are several developments that suggest it is time to renew efforts to defend disinformation research, not least the White House’s absurd effort to attack real journalism, what is sure to be a snowballing failure on Bari Weiss’ part to make propaganda popular, and the meltdown the head of DOJ’s Civil Rights division, Harmeet Dhillon, had over the holidays about right wing “misinformation” targeting Pam Bondi.

The right wingers are doing what they themselves established is unlawful. And that presents both political and legal opportunities to demonize their propaganda.

Which in turn cycles back to the increasing problem of AI propaganda, including Grok’s flagrant willingness to nudify children in recent days.

Some people write short resolutions. I guess I write 4,000-word To Do lists. Join me in my efforts!

Index to posts in this series

My previous post was about an article titled What Are We Living Through by Jedediah Britton-Purdy and David Pozen. The authors offer three scripts people use to answer the title question.

It seems odd that the authors, both law professors, don’t address the role of SCOTUS, but it’s probably because people don’t think about the role of SCOTUS in creating this disastrous presidency. But thinking about SCOTUS clarifies the situation. The Trump regime isn’t a sudden turn, as centrists and almost all Democratic politicians say. It is part of a long project, funded by an ever-changing group of filthy rich right-wing White people. One of their first overt steps was taking control of SCOTUS.

Gaining control of SCOTUS

Appointments to SCOTUS have had been virulently political at least since the nomination of Robert Bork was stymied by Democrats, based largely on “… his outspoken criticism of the Warren and Burger Courts and his role in the Saturday Night Massacre.“   The filthy rich loved Bork both for his right-wing politics and for his devotion to their interests.

The Federalist Society was formed in 1982 by students at Harvard, Yale and University of Chicago law schools “… with the aim of challenging liberal or left-wing ideology within elite American law schools and universities.” Bork and Antonin Scalia spoke at their first public event. The Wikipedia entry says this about early funding

… $5.5 million came from the John M. Olin Foundation. Other early donors included the Scaife Foundation, the Bradley Foundation[ and the Koch family foundations. Donors to the Federalist Society have included Google, Chevron, Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family.

Readers will recognize those right-wing operations run by inheritors of great wealth.

Leonard Leo founded the Cornell branch of the Federalist Society and moved on to employment there. Under his leadership, five of the current members of SCOTUS are members of the Federalist Society.

Hacking at democracy

Once right-wing ideologues took over SCOTUS, they began hacking away at laws intended to protect our democracy. They got rid of campaign finance laws, eviscerated anti-corruption laws, wrecked the Voting Rights Act, authorized gerrymandering, and gave the filthy rich nearly everything they wanted. In the process, they ignored or dismantled guardrails on their own power, rules like standing, justiciability, and minimal decisions; they took on the role of determining facts (a role supposedly played by trial courts) and ignored stare decisis, the fundamental basis of US Constitutional law. Trump v. US freed Trump from criminal liability for anything remotely related to the office of President.

These cases had a huge impact, not least of which was the election of Donald Trump to a second term

Weakening Congress

Gerrymandering and toothless campaign laws enabled the Republicans to control the House of Representatives. Structural features of our system, including equal representation of states in the Senate and the filibuster made it possible for the Republicans to prevent congressional action.

SCOTUS compounded this weakness by striking down legislation it didn’t like. For example, John Roberts has a long-standing hatred of the Voting Rights Act. In Shelby County v. Holder he struck down the provision requiring certain states with a long history of racial discrimination in voting to submit all changes to their voting laws for pre-clearance. This procedure enabled the Department of Justice to review those laws for racial discrimination before they were allowed to take effect.

Roberts justified his decision with a newly-invented fiction he called the dignity of the states. Congress.he said, hadn’t done enough to satisfy Roberts that pre-clearance acted reasonably by singling out states with a history of racist actiions, somehow explaining away the express grant of such power toCongress in the 15th Amendment. Effectively Roberts set himself up as the arbiter of whether Congress had done enough to justify a rule he didn’t like.

Strengthening Trump

In Trump v. Andeerson, SCOTUS held that only Congress can enforce the 14th Amendment’s insurrection clause, effectively neutering it. In Trump v. US the current majority held that the president cannot be held accountable for crimes he commits that the current majority says are within the core executive functions of the president. These two cases cleared the way for Trump to run again.

Because there were no enforceable limitations on campaign finance, Trump was able to raise hundreds of millions from the filthy rich and got a second term. He promptly began breaking laws. He destroyed entire agencies and weakened the rest of them, he set masked gunsels to snatch people off the street if they looked like not-white people (an action permitted as Kavanaugh Stops), refused to comply with Congressional appropriation laws, fired heads of independent agencies, fired tens of thousands of federal employees, and more. SCOTUS has at least temporarily allowed all these assaults on Congress’ express Constitutional power, explaining that Trump wants it and if he can’t have it that’s a terrible injury, worse than allowing ICE to kidnap people.

Political discourse

I think Purdy-Britton and Pozen are mostly right about the nature of political discourse, and that’s a problem. Their three scripts don’t include this partial list of horribles about the current SCOTUS majority. Concentrating only on the marauding president is simply not good enough to deal with our situation. The Supreme Court has also lost its legitimacy and done terrible damage to our democracy in the process.

I agree with an opinion piece in The Guardian written by Ryan Doerfler and Samuel Moyn, law profs at Harvard and Yale, titled It’s Time to Accept that the US Supreme Court is Illegitimate and Must be Replaced. This article summarizes a longer paper,  The Post-Legitimacy Court.. Both of these deserve more consideration than I give them here.

The paper cites Planned Parenthood of Southeast Pennsylvania as a major source of the idea of legitimacy:

“The Court’s power lies in its legitimacy,” Justices Kennedy, O’Connor, and Souter explained in their joint opinion, “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary fit to determine what the Nation’s law means and to declare what it demands.”

The authors say that the current majority has abandoned the goal of preserving legitimacy, suggesting that they

… might care about the views only of other conservatives (whether lawyers or the public) [which] would be consistent with the larger turn in Republican politics.

The authors discuss responses by some of my favorite legal writers. law profs Kate Shaw from the Strict Scrutiny podcast, and Steve Vladek. The authors say, and I agree, that their reactions to this Court are too legalistic and restrained. Doerfler and Moyn say the current majority has moved the Court’s institutional legitimacy to the brink of cliff, and citizens need to push it over the edge.

I agree, and would go farther. The current majority is not a court. It’s a group of six political actors no different from the majority of a congressional committee. Each member has goals, and these mostly coincide with the goals of the Republican Party and its largest donors. They have the votes and that’s all that counts. The current majority has rejected national legitimacy in favor of the exercise of raw power.

I always blame Roberts personally for every evil thing Trump does. Here’s an example.

Hammer the Court whenever you get the chance, on social media and in real life. It’s the first step to change.

At the hearing in accused pipe bomber Brian Cole’s case the other day, Magistrate Judge Matthew Sharbaugh ordered both sides to file their views about whether the indictment DOJ obtained against Cole from a Superior Court grand jury was valid; he ordered those filings to be posted to the public docket by end of business yesterday.

MINUTE ORDER as to BRIAN J. COLE, JR.: As discussed during today’s proceedings, the Court was presented yesterday afternoon with a two-count indictment in this case that was returned by a D.C. Superior Court grand jury, rather than a federal court grand jury. The indictment included the same two counts charged in the criminal complaint, namely 18 U.S.C. 844(d) and 844(i). In asking the Court to accept the indictment, the government invoked D.C. Code § 11-1916(a), which provides that “[a] grand jury serving in the District of Columbia may take cognizance of all matters brought before it regardless of whether an indictment is returnable in the Federal or District of Columbia courts.” The Court recognizes that Chief Judge Boasberg recently upheld the propriety of this approach based on that statute, concluding that Section 11-1916(a) authorizes local D.C. grand juries to return indictments in U.S. District Court (and vice versa). United States v. Stewart, 2025 WL 3237833 (Nov. 20, 2025). But Judge Boasberg then stayed that ruling pending appeal, stating in part that “the public interest lies in letting the Court of Appeals decide this issue before the Government moves forward both on this case and in similar fashion on other cases.” See Stewart, No. 25-mj-225, Order (Dec. 9, 2025). The Court yesterday deferred a decision on whether to accept the indictment pending further briefing from the parties on the question of whether Judge Boasberg’s stay order extends to the circumstances here. The parties were directed to submit briefing on that question, and the Court intends to issue a decision in short order on whether to accept the indictment as proposed. Meanwhile, the Court ORDERS that both sides shall file their respective briefs on the public docket by close of business on December 31, 2025. Either side may request redactions to their briefs the extent they believe it necessary, provided that the filing is accompanied by an appropriate motion to seal. SO ORDERED. Signed by Magistrate Judge Matthew J. Sharbaugh on 12/30/2025. [my emphasis]

According to Cole’s response, the government may have filed something under seal (I’m confused about the date here, because Cole’s response bears yesterday’s date, which would make the government filing, filed “yesterday,” on December 30).

Defendant Brian Cole Jr. respectfully submits this response in opposition to the government’s memorandum, filed late yesterday, December 29, 2025, asking this “Court [to] accept the indictment return,” referencing a document returned earlier that day not by a grand jury of this Court but rather by a grand jury organized by, and sitting at the behest of, the D.C. Superior Court. (Gov. Mem. at 7.)

But Jeanine Pirro went out partying last night before actually filing whatever they filed publicly.

And given the panic that Cole’s response describes, it suggests there may be real problems with the case.

The response provides the back story to their December 28 filing seeking to clarify that Tuesday’s hearing would include a probable cause inquiry.

On Christmas Eve, Cole’s attorneys asked prosecutors whether the December 30 hearing or whether they would indict before then.

We also need to know whether the government plans on holding a probabl[e] cause hearing on Tuesday [December 30, 2025]. We have received no information regarding an indictment and thus would like to know the government’s position on this. Please let us know by December 27, 2025.

Cole’s exasperated filing translated that inquiry this way: “Are you going to indict this case before next Tuesday?” [italics original].

The government used the holiday to stall almost two days, after which they asserted that the hearing would deal only with detention.

Tuesday’s hearing is a detention hearing under 18 U.S.C. § 3142(f). The government will be proceeding by proffer.

As Cole’s filing describes, nothing about that response made sense.

In this context, two options seemed likely: (1) the government had tried and failed to secure an indictment; or (2) it was still planning to obtain an indictment from the federal grand jury on Monday. To that end, Mr. Williams quickly wrote back:

Also, please tell us whether the government has sought an indictment before a grand jury on the charges against Brian Cole Jr. If an indictment was sought before a grand jury, we are requesting all documents demonstrating the outcome of the grand jury. For example, if a “No Bill” was rendered by the grand jury on Brian Cole Jr’s charges, please provide us with that. Please provide us with this documentation prior to this Monday.

On December 28 (that is, the day Cole’s attorneys filed that motion to clarify), AUSA Charles Jones responded that no grand jury was sitting after December 19, which surely he knew in real time.

As John [Shoreman] indicated below, the parties have not yet scheduled a Rule 5.1 preliminary hearing given the defense’s request to continue the December 15 detention hearing (at which we would typically have scheduled the preliminary hearing). Please let me know if you have a view on when to schedule that hearing.

Had there been a “no bill” in this matter, we would have promptly reported it to the Court pursuant to FRCP 6(f).[2] The government has not yet sought a grand jury indictment in this case given the defense’s request to continue the detention hearing and your agreement to exclude time under the Speedy Trial Act’s 30-day indictment deadline. Additionally, there are no sitting grand juries in D.C. District Court between 12/19 and 1/5.

Which Cole’s attorneys used to note that the FBI was surveilling Cole for a good deal of time before they arrested him.

2 The government must only make the report of a “No True Bill” under Fed. R. Crim. P. 6(f) “[i]f a complaint or information is pending against the defendant,” so the government’s response does not say whether it sought (and failed to receive) such an indictment prior to Mr. Cole’s arrest. From discovery, the defense team is aware that federal agents had placed the defendant under surveillance for a long period of time before his arrest, suggesting again that they had plenty of time to seek an indictment.

Cole’s team wonders whether they tried and failed to indict Cole; I repeat my observation that they did this last minute, in such a way that they would be unable to prosecute others.

This is when the filing gets a bit comical.

They translate what this means, again.

In turn, defense counsel finally had the answer to the question they had asked four days earlier: No, the government is not going to indict this case before next Tuesday. This meant, based on a plain reading of the relevant federal Rules and statutes, that there would have to be a preliminary or Mr. Cole would be released without conditions. [italics original, again]

In real time, Cole’s lawyers offered to forgo the probable cause inquiry if prosecutors would release him on bail.

(1) “We can exchange dates for the preliminary hearing;” and (2) “[W]ould the government be interested in waiving the preliminary hearing in exchange for bail under a strict set of agreeable conditions placed on Mr. Cole?”

That’s when Jones got obstinate: No release, no probable cause hearing until January 7.

23. About 20 minutes later, the government responded on these two points by writing: (1) “Would the afternoon on January 7 or January 8 work for a preliminary hearing?”; and (2) “We’re not willing to agree to release under conditions in exchange

Cole’s lawyers were not that stupid, as they describe.

Given that a federal grand jury would reconvene on January 6, 2025, it would have been malpractice for defense counsel to agree to delay the preliminary hearing again until a date as late as January 7, 2026.

Jones went silent, so Cole’s lawyers flew out a witness who — they reportedly said during the hearing the other day — would have testified that the pipe bombs would not have exploded. They also noted what I did: neither the arrest affidavit nor the detention memo presented any evidence that Cole bought black powder or the potassium nitrate that he allegedly told them he used to make it.

If these weren’t bombs, they might not be able to charge Cole under the existing statute, and if they can’t, then the statute of limitations might run before a grand jury is seated to indict Cole with something else.

And in the government’s (apparently still sealed) filing, they try to blame Cole for adhering to Federal Rules of Criminal Procedure.

34. This is not hyperbole. The government admits as much, stating that it “would have sought [] an early indictment from a federal grand jury panel had there been any indication that the defense, contrary to all indications, intended to pursue a preliminary hearing on December 30, 2025.” In other words, the government expected defense counsel to drop the ball.3 That is not “changed circumstances.”

3 The government does not proffer any reason why competent defense counsel would agree to forego a preliminary hearing in the absence of receiving some benefit, such as an agreement to release the defendant from custody. That is because there is none—making the government’s purported reliance on this “indication[]” entirely unreasonable.

For what it’s worth, I think the government’s location data is also likely to be aggressively challenged.

But it sounds like the government also understands they’ve got a hole in their case where the actual explosives are supposed to be.

Update: Sharbaugh has dispatched with this process by, first, seemingly misrepresenting what the defense said about a probable cause hearing (and thereby granting himself the ability to determine probable cause without the hearing the defense wanted), then finding Cole should be detained. Then, after doing that, he said it was no harm no foul on forgetting to indict him and doing it in the DC Superior Court to avoid a hearing.

I don’t contest the decision, which seems reasonable enough (he relies heavily on DOJ’s representation of Cole’s confession, which his attorneys did not contest because they were making a procedural case), though I do think the procedural posture is a problem.

Jim Jordan tried to bury the Jack Smith deposition in a News Years Eve document (and video) dump.

Perhaps that’s because the funniest answer Smith gave (after already explaining why he had obtained subpoenas for the phone records of members of Congress, which was, in part, because Boris Ephsteyn and Rudy Giuliani were using two phones that day) was that Jim Jordan’s toll records were important because Jordan called the White House on January 6 because he was scared.

Q The toll record subpoena for the chairman of the committee.

A Well, I can tell you that, for example, there were — there was contact on, for example, January 6. But, again, another example for you is Mark Meadows, when he interviewed, when we interviewed him, he referenced the fact that that afternoon Chairman Jordan had been in contact with the White House. And, like Congressman McCarthy’s contact with the White House, it was relevant because, again, Meadows stated this, that these were supporters. These were credible people that the President relied on.

And what I recall was Meadows stating that “I’ve never seen Jim Jordan scared of anything,” and the fact that we were in this different situation now where people were scared really made it clear that what was going on at the Capitol could not be mistaken for anything other than what it was.

And it goes back to that sort of information from someone who is a credible source to the President, proving that that actually happened and that there’s actually a record of that call and exactly when it happened and what actions happened after that or didn’t happen after that, extremely probative to our case.

Meanwhile, after Republicans complained about Smith’s gag order on Trump,

Q Did you- — you sought gag orders in both the Florida case and the D.C. case.

Is that correct?

A We sought an order in the D.C. case under a rule — I think it’s 57.2 — and we did that because Donald Trump was making statements that were endangering witnesses, intimidating witnesses, endangering members of my staff, endangering court staff.

As you might remember, in the — right around when the indictment was released, he issued a tweet saying: “If you come after me, I’ll come after you.” He called — in a tweet he called General Mark Milley a traitor and mentioned that what he’d done in olden times people would be put to death. As a result of the things he was saying, the judge in this case was put — received vile death threats.

And with respect to D.C., both the district court and the court of appeals, a panel of judges, found that his actions were, in fact, causing what we said they caused. They were causing witnesses to be intimidated and endangering people.

And I believe it was the court of appeals also found that in addition to intimidating or chilling witnesses who existed, it would chill witnesses who had not yet come forward because they were afraid that they would be next.

So, yes, we did file that and I make no apologies for that.

Q Which witnesses do you think he would have intimidated? I mean, are there any specific witnesses that you could identify for the court?

A We did a filing. I don’t recall the specifics in that filing right now. But as I said, one of the issues from my perspective was not only the witnesses who he had specifically called out and caused threats to be issued, this phenomena that was found by both courts, it was the result of that is that a rational witness who maybe had not come forward would be completely afraid to because they would see that they would be next.

And I think the courts — both courts agreed with that.

Here’s how Smith answered Jasmine Crockett’s question about threats to Smith specifically.

Ms. Crockett. And, just to kind of finish up on this point, you, yourself — I’m not sure if this was discussed by the majority, but have you, yourself, been intimidated as a result of the actions that you took in this case.

The Witness. I’m not going to be intimidated.

Ms. Crockett. Have you been threatened.

The Witness. Yes.

Much later, Smith declined to get into the threats against him because they would endanger his (and he did not specify, but implied, his family’s) safety.

Q Do you feel like you have a target on your back?

A I believe that President Trump wants to seek retribution against me because of  my role as special counsel.

Q Would you be surprised if President Trump directs the DOJ to indict you?

A No.

Q Are you concerned about the safety of people who associate with you, like your former colleagues and your attorneys here today?

A I would prefer, if it’s all right, not to talk about my safety, because I think doing so could, in fact, endanger my safety and those of people around me.

Q Understood.

Though Smith did later confirm that Trump tried to retaliate against Covington & Burling because they represented him.

Regarding Smith’s investigation, one of the more interesting insights was his explanation of why he did not try to interview Steve Bannon, Peter Navarro, or Roger Stone.

Ms. Lofgren. Can I ask — we attempted in the January 6th Committee to question Peter Navarro as well as Steve Bannon, and they were both prosecuted and spent time in jail. Roger Stone appeared but took the Fifth.

Were you able to provide — to get information from any of those three individuals and in the case of Mr. Stone provide use immunity so that he would have to testify?

The Witness. We did not.

Ms. Lofgren. Why not?

The Witness. We pursued the investigative routes that we thought were the most fruitful. We pursued those that we thought were necessary to get a complete understanding of the scope of the conspiracy. And given the highly uncooperative nature of the individuals you talked about, I didn’t think it would be fruitful to try to question them.

And the sort of information that they could provide us, in my view, wasn’t worth immunizing them for their possible conduct.

In addition to Ephsteyn, he also interviewed Rudy. Smith repeatedly said that prosecutors would have welcomed if Trump called any of his co-conspirators as witnesses.

Q Were you planning on calling John Eastman as a witness?

A I do not believe we would have, but we would have welcomed if the defense called him.

Q Okay. It gets tricky, though, for the defense to call him because the people like Eastman and Clark and, you know, Rudy Giuliani and Sidney Powell, I mean, you know, they were shrouded by the special counsel as, you know, co-conspirators one through six.

And so they all feared that they were going to be prosecuted if they said anything. Isn’t that fair?

A Well, they were co-conspirators. I can’t get into what was in their mind or not. can tell you some of the co-conspirators met with us in proffers and did interviews with us.

And so the idea that someone like Rudy Giuliani, who sat with a proffer with us, he was available as a witness, and we would have welcomed President Trump calling him as a witness.

Boris Epshteyn sat for an interview with us. We would have welcomed calling him as a witness.

Kenneth Chesebro. We would have welcomed it.

They probably had material lies all had made to either prosecutors or courts.

That comment led immediately to Republicans (who surely were trying to obtain evidence to support criminal charges against Smith) to ask why he hadn’t worked his way up through co-conspirators.

Q Why didn’t you charge any of those?

A I’m sorry?

Q Why didn’t you charge any of those, those co-conspirators?

A As we stated in the final report, we analyzed the evidence against different co-conspirators. We — my staff determined that we did have evidence to charge people at a certain point in time. I had not made final determinations about that at the time that President Trump won reelection, meaning that our office was going to be closed down.

Q Right. You’re a — you’ve had a 30-year career as a prosecutor. You prosecuted gang members, right?

A Yes.

Q You prosecuted organized crime members, right?

A Not as much.

Q But surely one of the fundamental principles of prosecutorial work is you work from the bottom up and you try to get as many fact witnesses to work with you. And a lot of times those fact witnesses have criminal liability.

And a lot of times those lower fact witnesses, the smaller fish, almost always they’re — they’re either prosecuted or they are given an immunity because they fear they’re going to be prosecuted. But here you didn’t — you know, you kept laser focused only on President Trump.

A Two points.

One, as I said, we were considering prosecutions of these people, and I think — I don’t want to say what the ultimate conclusion of that would have been, but that was something that was being considered.

The second thing I think to understand contextually is this was a case where the issue was how to present it in a concise way.

We had so many witnesses, again, so many witnesses who were allies of President Trump available to us to testify. This was not a case where we needed more witnesses, it was a case where we needed to be able to present the case in a streamlined way because there was so much evidence.

That led to Smith explaining why he focused on Trump: because none of the crime would have happened without him. It was all done for his benefit.

A All of that is false, and I’ll say a few things.

The first is the evidence here made clear that President Trump was by a large measure the most culpable and most responsible person in this conspiracy. These crimes were committed for his benefit.

The attack that happened at the Capitol, part of this case, does not happen without  him. The other co-conspirators were doing this for his benefit.

So in terms of why we would pursue a case against him, I entirely disagree with any  characterization that our work was in any way meant to hamper him in the Presidential election.

Aside from the two phones revelation or a detail about texts between Bannon and Ephsteyn in which Bannon told Ephsteyn that Trump was “still on fire,” there were almost no new disclosures.

Indeed, staffers from both parties were painfully unaware of all the public filings that could have supported some questioning there, including about Kash Patel’s testimony.

Meanwhile, staffers of both parties wanted to know why Trump stole the classified documents, which Smith declined to answer this way when responding to Democrats,

Q Okay. Can you draw any conclusions about his motive for refusing to return these documents?

A Unless you can point me to a filing, a public filing on that issue, I don’t want to run any risk of running afoul of the injunction. And so without a public filing on that issue, I don’t think I can answer that.

Q Just one last question. Did you come across in the course of your investigation any evidence about why President Trump took those documents in the first place?

A Again, I don’t think that’s in the indictment here, and unless you have a public filing, that given the current state of the injunction, I don’t think that’s a question I can answer.

And he responded this way when Republicans tried to offer up a stupid excuse for Trump.

Q Uh-huh. Do you know if he was intending to save those materials for his 12 Presidential library?

A You mean the classified documents?

Q The items in the boxes, all of them.

A Well, if he — if his defense were that he was intending to take classified documents that he had no authority to take and he did it intentionally because he wanted to start a Presidential library and keep these documents in the locations that we talked about today, that’s a crime.

Q No, but my question was, all the items in the boxes, the shirts and the, you know, mementos, were they being saved for a Presidential library, to the extent you were able to develop that in the course of your investigation?

A You know, I mean, there were newspaper clippings in there, there were, I think, you know, different sorts of things that I wouldn’t — wouldn’t, to me, seem like the sort of things that would be in a Presidential library. I — to be honest, I’ve never been to a Presidential library, so — but if I were starting one, I don’t think that’s the sort of things I would put in it.

Q Okay. But you didn’t develop any evidence during the course of your investigation that the materials were intended to be saved for a Presidential library?

A I don’t recall that.

Notably, Smith was uncertain whether the report discloses whether they got all the stolen documents back.

Q Do you think that the FBI was able to retrieve all the classified documents that 20 President Trump improperly retained after he lost the 2020 election?

A I’m struggling because I can’t recall if that is in the final report. And because I’m not sure of whether it’s in there, I don’t think I should answer that question.

In any case, Aileen Cannon is officially withholding information that both Democrats and Republicans want to know; perhaps that can be used to force her to release the report.

It’s been quite a year, which is just the way Donald Trump, a narcissist the likes of which the world has never seen^tm, wants it.

Almost.

Can’t you just hear him: “I do, I do, and I do some more, more than anyone else ever, and yet I don’t get all the accolades I deserve. Haters.”

Now sure, he got the inaugural Gianni “Human rights problems? What human rights problems?” Infantino FIFA Peace Prize. But he wanted more, as he believes is only his due. Sadly, so many other awards have been somehow given to other clearly underdeserving folks, and still other awards are just begging to be given but no one has had the imagination or chutzpah to actually award them.

Until now. May I have the envelopes, please?

The Donald J. Trump Award for Narcissistic Rebranding goes to . . . Donald J. Trump for The Donald J. Trump and John F. Kennedy Center for the Performing Arts. And how dare any mere jazz musicians object to this.

The Donald J. Trump Award for Nationalistic Rebranding goes to . . . Donald J. Trump for the Gulf of America. All the haters at the AP and elsewhere can just get a life.

The Donald J. Trump Award for Interior Decoration goes to . . . Donald J. Trump for the over-the-top golden decorations, the “live, laugh, love” style signage, and the stunning — really absolutely stunning — renovations of the Lincoln Bathroom at the White House. The Presidential Walk of Fame with its image of Biden the AutoPen and the jawdropping plaques recounting each president’s achievements is truly beyond belief.

The Donald J. Trump Award for Architectural Salvage goes to . . . Donald J. Trump for his efforts to save the nation from the abomination that was the White House East Wing and replacing it with a much more appropriate Donald J. Trump White House Ballroom. Specific plans for the ballroom remain vague – I believe the phrase “we have a concept of a plan” fits this project, among others – but simply removing the East Wing was something that clearly needed to happen. And why does FLOTUS need any office space anyway?

The Donald J. Trump Award for Services to the Legal Community goes to . . . Donald J. Trump for his amazing record of presidential appointments to remake the legal system. From his SCOTUS appointments at the top to his appointment of judges like Emil Bove in the middle and Aileen Cannon at the bottom, as well as his appointment of prosecutors like Jeanine Pirro and Lindsey the Insurance Lawyer, he has truly installed only the best people^tm and that would be enough to earn him this award. But Trump didn’t stop there. Add to this the way in which he pushed out career DOJ staffers and the manner in which he got Big Law to bend the knee in the private sector, and this award is a slam dunk.

The Donald J. Trump Award for Medical Advancements goes to . . . Donald J. Trump for his efforts to dismantle and destroy the World Health Organization. Reading what Johns Hopkins University’s Bloomberg School of Public Health describes as WHO’s role in the world, it is obvious that WHO is a clear nuisance that needs to go:

The WHO plays many roles—the visible, apparent roles that many people are familiar with, and the roles that are less visible. This includes:

• Detecting, monitoring, and responding to emerging health threats, pandemics, and diseases of importance; we saw that during the COVID-19 crisis.
• Gathering and evaluating data and information from all over the world in order to understand the status of health globally and detect emerging problems. This includes acute crises as well as larger trends in health—which issues are causing a higher burden of disease and which ones we’re making progress on and should sustain efforts to address.
• Setting standards and developing guidelines that help people around the world, including here in the U.S., deal with various health threats and crises—not only infectious diseases, but all sorts of health issues.
• Providing commodities and goods to improve health around the world, including vaccines and drugs for many diseases. The U.S.’s withdrawal from WHO impacts not only the people who receive those goods, but also the supply chain for them, which includes many people in corporate America.
• Assisting with humanitarian response, which has important implications both for the populations who are affected by those crises and for global diplomacy and the role of our humanitarian responses in improving global diplomacy around the world.
• Providing very important technical assistance to governments and partners around the world to be able to respond to health challenges. The U.S. plays a very important role in providing this technical assistance.

Yeah. Who needs all that? (The “Bloomberg” in the name of the school was a clear giveaway as to JH’s unreliable wokeness.)

The Donald J. Trump Award for Services to the Environment goes to . . . Donald J. Trump’s decision to shut down the National Center for Atmospheric Research in Colorado. As climate scientist Kim Cobb told PBS,

“We’re talking about unique, one-of-a-kind facilities like supercomputers, ticked-out [sic, should be tricked-out] airplanes, and most importantly, a staff of over 800 people who are at the top of their game in innovating in weather and climate science for public good, putting out data that is on every single climate scientist’s computer around the country, if not around the world, and a nexus of collaboration as well that is important training grounds for the next generation of leaders.”

Yeah. Who needs all that when we’ve got The Weather Channel, amiright?

The Donald J. Trump Award for Service to Diplomacy goes to . . . Donald J. Trump for his muscular engagement with Nigeria, Venezuela, Iran, Yemen, Syria, Somolia, among other nations. (Simply renaming the US Institute of Peace as the Donald J. Trump US Institute of Peace seems hardly enough of a recognition for Trump’s breathtaking diplomatic work.)

The Donald J. Trump Award for Economic Excellence goes to . . . Donald J. Trump for his truly amazing grasp of the power of tariffs. Just ask the Kentucky Bourbon industry, US soybean farmers, and the members of the chambers of commerce in cities and towns along the US/Canada border.

The Donald J. Trump Award for Civil Rights goes to . . . Donald J. Trump for his dismantling of anything that smacks of a lack of racial harmony throughout American history. The Stonewall Riots, the Civil War, and anything having to do with Native Americans are merely the tip of the iceberg on the list of things that need to be forgotten, for the good of the nation. Trump is Making America Great Again by going back to the basics. As the faculty senate of Haskell Indian Nations University put it, Trump’s cuts to Native American education “represents a continuation of the trail of broken treaties” that is all too familiar to Native Americans. (Rumor has it he is working on how to get the women back in the kitchen (barefoot and pregnant), the gays back in the closet, and the blacks back in the fields, but those are clearly just rumors. I think. I hope.)

And that’s just a start.

I’m sure there are awards I am missing, but I trust that the imaginative and creative Emptywheel commentators can add to the list. Because really, Alfred Nobel has six prizes with his name on them, and what did he do, really, except invent dynamite? Trump surely deserves many more awards with his name on them than Nobel’s six. or the few that I have listed here.

Trump is truly in a league of his own.

Happy New Year’s, everyone. May next year be better (OK, that’s a low bar, but I’ll take it.).