By now you’ve heard about Peter Thiel’s batshit column, in which (with no explanation) he suggests Trump’s second term might bring about an apocálypsis that his first term did not, a revelation of all the secrets that, Thiel claims, “the media organisations, bureaucracies, universities and government-funded NGOs” have been keeping.

Among the secrets Thiel thinks Trump will tell in his second term that he did not in his first are:

• Who else — potentially including “Fidel Castro, 1960s mafiosi, the CIA’s Allen Dulles” — worked with Lee Harvey Oswald to kill JFK.
• How longtime Trump and Elon Musk friend Jeffrey Epstein died in a prison overseen by Bill Barr, whose family ties with Epstein go back even further.
• Whether Anthony Fauci secretly believed and covered up that, “Covid spawned from US taxpayer-funded research, or an adjacent Chinese military programme?”
• Joe Biden Administration’s hypothetical involvement in Brazil’s decision to uphold its data sovereignty, an Aussie law imposing age limits on Internet use, or the UK’s prosecution of violent rioters whom Thiel describes as guilty of no more than speech.
• Whether Charles Littlejohn’s leak of Trump’s and others’ tax records was anomalous or whether the same thing happened to Hunter Biden. (I kid. Of course he ignored that it happened to Hunter.)
• What’s behind a “50-year slowdown in scientific and technological progress in the US, the racket of crescendoing real estate prices, and the explosion of public debt” (in the same way he ignored that Hunter’s tax records had been leaked, Thiel also ignored how easy it would be to fix public debt if he and his buddies paid their fair share in taxes).

Nutty, right?

And right in the middle of these fevered conspiracy theories, intelligence contractor Peter Thiel wondered whether there’s such a thing as a right to privacy at all so long as Congress keeps reauthorizing FISA Section 702 under which the FBI continued to have violative queries incorporating US Person identifiers all the way through the Trump first term and in queries done as part of the January 6 investigation.

And on that same day, Tulsi Gabbard issued a statement reversing her opposition to Section 702, and in the process won the support of James Lankford and presumably some other hawkish Senators.

If confirmed as DNI, I will uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people. My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens. Significant FISA reforms have been enacted since my time in Congress to address these issues.

And all these Senators, reassured that Tulsi will continue America’s best spying advantage, will ignore all the other reasons she’s wildly unsuited for the position.

Thiel is not alone among those naively investing his hopes to end surveillance by ending 702. A slew of privacy activists have focused there, too.

It’s like none of these people remember that people close to Trump used Israeli surveillance contractor Black Cube to spy on Barack Obama’s Iran deal negotiators, Colin Kahl and Ben Rhodes.

It’s like none of these people remember that Trump had DHS — which has fewer protections for US persons than the FBI does and which was run by a Trump flunkie — to surveil journalists covering the Portland riots.

It’s like none of these people have thought through the implications of Trump’s baseless claim that Hizballah was somehow involved in January 6, which is that all the people already identified who participated in the riot will be searched under 702 for ties to Iran; searching for ties to foreign terrorist groups is literally the initial use case for 702.

It’s like none of these people have through through the implications of the immunity ruling, which would mean that Trump could spy on Daniel Ellsberg’s shrink or even his Democratic opponents, and John Roberts would still let him off the hook.

It’s like none of these people have yoked that reality to Trump’s chumminess with most of the most prolific sources for Section 702 — Facebook and Google, probably Amazon — providing him a way to get what he wants directly (to say nothing of whatever DMs Elon might find to be interesting), targeting the actual Americans rather than the people overseas with whom they interacted.

Craziest still, Thiel presents the concern that the government will continue to partner with companies run by Tech Bros like Peter Thiel and Elon Musk and Mark Zuckerberg and Tim Apple and Sundar Pichai to surveil the world (likely with the help of Palantir software) as some great conspiracy theory. But he doesn’t realize — or wants to pretend — that he and his Tech Bro buddies are the key villains here.

Do tell us your secrets, Peter. But first, come to grips with the fact that you are the conspiracy you’re wailing about.

Index to posts in this series

So far I’ve written four essays on becoming an individual in the US, without explaining why this seemed like a worthwhile question. The answer lies in the last election. The conventional wisdom is that the state of the economy and the character of the candidates are major factors in the decisions of voters. A third major factor is tribal identity.

But no reasonable person can deny that Trump is a revolting bag of guts. He has no integrity, no loyalty to the Nation or anyone besides himself, and no reason to want to be president other that personal gratification and staying out of jail.

It is equally inconceivable that any sane person thinks that the current Republican Party cares about the economic or physical well-being of anyone except themselves and their donors. There is nothing in the history of the last 45 years to suggest that Republicans will enact any legislation, adopt any budget, or make any rule change that will benefit any of us. Most of their plans will hurt millions, including their voters.

So why did so many people flunk this basic test of democracy and vote for this oozing pustule?

Their answers

I’ve run across lots of explanations, without keeping track of sources. He says he’ll protect my abortion rights, said one woman. He’s the imperfect tool the Almighty is using. He’s against killing babies. He’s so masculine. He’ll fix the economy. The economy was better under his first administration. He’ll fix the border crisis. He’s for law and order. The Democrats didn’t help me. The price of eggs. Vaccines are killing us.

That’s all crazy, and I doubt it’s the real reason.

Why it matters

We say we live in a democracy, that our government derives its just powers from the consent of the governed. But we ignore the responsibilities democracy puts on us. We do not form a shared view of reality, and of the problems we face. We do not listen and hear ideas about solutions.

Blue voters think the point of government is to make our joint lives safer and more pleasant, and to give everyone the best chance of flourishing. I have no idea what Trump voters think the purpose of government is. Most of them couldn’t tell you. Only the Christian Dominionists have an answer.

I think Trump voters follow leaders who tell them what their problems are. These leaders insist that the important things are abstract ideas  around sexual morality, racial purity, white male superiority, and religious fundamentalism, among others. Trump and his henchmen find or invent instances exemplifying those fake abstractions, and the leaders and the media amplify them. These leaders (preachers, Fox News belchers, Qrazies) tell them Trump will solve the problems created by Trump and amplified by those very leaders.

Normal people know government can’t solve those abstract problems. It can only make life hard for the targets of right-wing obsessions. The leaders know that too. They don’t care. They want votes and obeisance, things that will benefit them.

Two explanations

I think existentialist philosophers like Camus and Sartre are right that many people don’t want freedom. They are willing to do just about anything to avoid exercising it. Perhaps they think it might expose them to ridicule or hostility from the people around them. Perhaps it’s too hard to make a decision. Maybe they’re afraid of the responsibility that goes with exercising freedom. Maybe they think that if everyone exercises freedom, chaos will follow. Freedom is dangerous.

I used to think this existential dread was just an rationalization to explain why so many Germans supported the Nazis, and why so many French people supported the Vichy government. But now I think that they were on to something important. Freedom is terrifying.

Jean-Jacques Rousseau offers a different explanation.  This is taken from the Internet Encyclopedia of Philosophy.

Soon, there become distinct social classes and strict notions of property, creating conflict and ultimately a state of war not unlike the one that Hobbes describes. Those who have the most to lose call on the others to come together under a social contract for the protection of all. But Rousseau claims that the contract is specious, and that it was no more than a way for those in power to keep their power by convincing those with less that it was in their interest to accept the situation. And so, Rousseau says, “All ran to meet their chains thinking they secured their freedom, for although they had enough reason to feel the advantages of political establishment, they did not have enough experience to foresee its dangers.”

Doing what the dominant class tells you to do is a trade-off for relief from fear of chaos. Watching the fearful vote for Trump is just like watching people run to meet their chains.

Both explanations seem to rely on a deeply human desire for security and certainty. Not all people succumb to that desire. Many of us know that there is no permanent security, and that there is no certainty. That knowledge does not frighten but inspires. The question becomes not how to escape freedom, but how best to use our freedom in an indifferent universe.

Conclusion

1. We all look to others for our ideas. I do. So who am I to judge others for choosing Trump or some rando on YouTube as a leader? Well, I think some things are better than others, and I can make these distinctions, guided by the insights of people who don’t want anything from me. In particular, they aren’t asking me to give them powers they can exploit for their own ends.

2. I used to think conservatism was driven by principles, even if I could not quite articulate them to my own satisfaction.

Now I think millions of Americans choose to abdicate their freedom and responsibility to judge based on their own principles.

=======

The caption on the front page image translates as “Turn back? After we’ve come so far?”

Listen on Spotify (transcripts available)

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

ORDER:

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

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

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

ENTERED FOR THE COURT – BY DIRECTION

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Narrow the legal dispute

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

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

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

Create a dead man’s switch

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

Implicate the Hunter Biden report

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

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

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

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

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

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

[snip]

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

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

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

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

And that’s why the Hunter Biden report matters.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

The other individuals likely including private citizen Donald Trump.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let me start this post with a quiz.

Who are the two Trump associates newly treated as co-conspirators in the October 2024 immunity brief?

The answer?

Steve Bannon and Mike Roman (yeah, sure, I gave a big hint).

While neither was added as a labeled co-conspirator in the August 2024 superseding indictment (that is, as a CC1 through CC6, as Rudy Giuliani, John Eastman, Sidney Powell, Ken Chesebro, [Jeffrey Clark], and Boris Epshteyn were), they were treated as co-conspirators in the immunity filing. Bannon was described in a list of the “private co-conspirators” early in the brief. And while the brief described Roman as an agent early on, when it described how he deliberately tried to stoke violence at the TCF Center in Detroit during the vote count in November 2020, it described him as a co-conspirator. Thus, both Bannon and Roman were treated as co-conspirators specifically in response to their premediations of violence.

A month before the election, in defiance of Trump’s efforts to suppress the information, Jack Smith introduced new details about how Trump premeditated violence in 2020. He revealed that the guy whom Trump pardoned on his way out the door in January 2021, the guy who was at that moment sitting in Danbury Prison for refusing to tell the January 6 Committee about that premeditated violence, had been involved in the plot from the beginning.

When I asked this question on Bluesky, four people eventually got the answer correct, but most people struggled. One extremely knowledgable legal writer got Bannon, but not Roman. A higher profile pundit confessed they had “no clue.”

This may seem like a totally picayune detail. Except I spent yesterday watching pundit after pundit expounding with confidence about what happened with the DOJ investigation, virtually all of whom got basic details of the investigation wrong. Which is why I thought I’d test whether they knew this detail. If you don’t know that Smith newly treated Bannon and Roman as co-conspirators, you don’t know where the investigation might have been headed when SCOTUS stalled everything in December 2023. You don’t know what happened in the case right in the middle of election season. That is, a legally significant — premeditation of violence!! — development happened when you should have been paying closest attention … and you missed it.

And as a result, you did nothing to convey that to voters. I’m not sure these lefty pundits, many of whom are wailing that someone at DOJ didn’t tell them what was going on, even noted the immunity brief.

Like a lot of pundits writing yesterday, Dan Drezner blamed a slew of people for not holding Trump accountable, claiming with no evidence that Merrick Garland waited “too long” before turning to Trump and ignoring the delays and some of the legal shenanigans SCOTUS caused. He ranked his villains in what he views as their ascending order of responsibility.

1. Joe Biden, who defeated Trump in 2020 but due to a combination of hubris, age, and ego stayed in the 2024 race far too long, stacking the deck against anyone who challenged Donald Trump;
2. Merrick Garland, who took way too long to mobilize any serious Justice Department investigation into Trump’s myriad felonies;
3. The Supreme Court of the United States, who repeatedly, persistently evinced zero interest in applying any legal or constitutional constraint on Donald Trump. As a result, no future president will feel constrained in any way whatsoever by the Emoluments Clause, Section Three of the Fourteenth Amendment, or, as it turns out, pretty much any law that might otherwise restrict the President of the United States;
4. Mitch McConnell, who could have tipped the scales on Trump’s second impeachment (and made it pretty clear afterwards how he felt about Trump) but, in the end, did not vote to convict;
5. Congressional Republicans, who acted and sounded pretty goddamn terrified when the rioters attacked on January 6th. If they had all decided to jump at once and vote to impeach and then convict Trump, his political power would have evaporated. Instead, scared of their own partisans, they capitulated to Trump;
6. Donald J. Trump, who whipped his supporters into a frenzy, attempted to organize slates of alternate electors, refused to recognize the results of any election that he has lost, and has promised to pardon those who violated laws to serve his interests. And finally,
7. The American people, who had plenty of opportunities not to vote for Trump again. In early 2024, Republicans could have gone to the polls and selected a Trump clone who had not committed multiple felonies. In November 2024 voters could have gone to the polls and selected a different candidate who, to repeat a theme, had not committed multiple felonies. And yet, in the end, a plurality voted for the toddler.

The list doesn’t include lefty pundits, the people who might be expected to identify salient details of the investigation — like that Jack Smith got evidence that Trump and his c0-conspirators premeditated violence — the people who might drive the press focus on those salient details.

He doesn’t include the people whose job it is to be informed of and comment on such matters, who yesterday, affirmed that role loudly.

So he held American voters responsible. But not the people who failed to inform voters of key details in the investigation of Trump.

The failure to incur any electoral cost on Trump for his coup attempt is a political failure. It reflects the political failure to rebut Trump’s relentless campaign of grievance. In his list, Drezner conveyed that by assigning to voters even more responsibility than Trump himself. Yet he doesn’t include the political failures — his own political failure — of the pundit class at all.

None of these pundits did.

It is, perhaps, a gimmick to ask the pundits who sternly weighed in yesterday to take a simple test.

It is, perhaps, too much to ask from pundits that they do the homework for the gig.

It is, perhaps, churlish to expect that pundits hold themselves to account for this political failure.

The flood of columns we got yesterday, some of it quite good? That’s what was needed in February. And March. And April. And May. A constant stream of punditry focused on Trump’s assault on democracy. More often than not, that punditry was focused on Merrick Garland, not Trump. And in the vacuum, Trump sold his grievance narrative to millions of Americans, many unaware of the actual details of the case or — more importantly — the justice of the case against him.

The failure to hold Trump accountable is a failure with many authors. It’s time lefty pundits consider their own role in that.

As I have expected, Trump is trying to prevent the release of Jack Smith’s report. Walt Nauta and Carlos De Oliveira asked Judge Cannon (who, unless I’m mistaken it, does not retain jurisdiction over the case) to prevent Smith from releasing the volume pertaining to the stolen documents. And that filing includes a long screed from Todd Blanche asking Merrick Garland to fire Jack Smith so he doesn’t do what Special Counsels do.

Among the other things Blanche complains about is that the report includes details on people expected to be part of Trump’s Administration. And that Xitter stalled its response to a warrant.

Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.

As I keep mentioning, some of this will implicate Kash Patel. Hell, some of it may implicate Blanche himself.

As I have suggested, Garland may have been trying to release both this and the David Weiss report after Wednesday’s sentencing of Alexander Smirnov — so possibly the 10th. We’ll see whether Garland tries to get the documents part of the report out before Cannon tries to intervene.

Update: Jack Smith responded to the Florida motion.

The Special Counsel’s Office is working to finalize a two-volume confidential report to the Attorney General explaining the Special Counsel’s prosecution decisions. See 28 C.F.R. § 600.8(c). The Attorney General will decide whether any portion of the report should be released to the public. See 28 C.F.R. § 600.9(c). One volume of the report pertains to this case. The Attorney General has not yet determined how to handle the report volume pertaining to this case, about which the parties were conferring at the time the defendants filed the Motion, but the Department can commit that the Attorney General will not release that volume to the public, if he does at all, before Friday, January 10, 2025, at 10:00 a.m. The Special Counsel will not transmit that volume to the Attorney General before 1:00 p.m. on January 7, 2025. The Government will file a response to the defendants’ Motion no later than January 7, 2025, at 7:00 p.m.

Update: Aileen Cannon has enjoined DOJ from releasing the report at all. This wildly exceeds her authority and makes it more likely that it’ll come out under Presidential immunity.

Meanwhile, David Weiss plans to release a report under the same authority some time after Wednesday.