Subpoenas for GOP toll records (questions by GOPers): 55
Subpoenas for GOP toll records (questions by Dems): 2
Other subpoenas for GOP witnesses (questions by GOPers): 1
Subpoenas from the stolen documents investigation (asked by Dems): 19
As that tally makes clear, the vast majority of those references came during the GOP time, focused on the subpoenas for 10 members of Congress, one of two fake scandals that Chuck Grassley created in advance of Smith’s testimony.
There were no questions — zero — about the other scandal Chuck Grassley created, that Jack Smith had subpoenaed (Grassley falsely claimed) records, mostly financial, for 430 “targets”. Even Chuck Grassley, in a December 8 post laying out the “oversight” he plans to do in 2026, barely mentioned those subpoenas.
The closest the House GOP came in last month’s Smith deposition was this question about claims that right wingers were debanked (as if being an insurrectionist were not reason enough for a bank to cut ties with someone):
Q Where they’re basically told by their bank that they need to go find a different bank. And there is a long list of, you know, Trump allied, you know, officials that were subpoenaed for the grand jury, that were, you know, brought into your investigation that claim they had been debanked and that Capital One told them to go find a different bank and numerous other banks.
Do you know anything about that?
A No, I do not.
Q Okay. So your office didn’t have any communications with banks urging a bank to separate from any of their customers?
A I have no knowledge of that.
Q Are you aware of that allegations, or is this the first you’re hearing of it?
A I’m trying to think. I didn’t know what the term meant when you first said it, so, I mean, in the scheme of the world, have I heard of the word debanking? Maybe. But if you’d asked me to define it when you first said it, I don’t think I could have.
Q Okay. But have you — so you haven’t heard that allegation that some of the folks in President Trump’s inner circle have complained that they, you know, were kicked out of their bank?
As a result, the GOP did not invite (and Democrats did not think to invite) Jack Smith to explain a slew of subpoenas he sent out, subpoenas that constituted new prongs of the investigation and expanded prongs of work done in 2021 about finances.
As I laid out here, those subpoenas clearly addressed known prongs of the investigation into how Trump raised tons of money based on false claims and later funneled the money to people who had remained loyal through the attack on democracy.
Five pages — which appear to match the title of the document, Arctic Frost Bank Record Subpoenas — show subpoena returns with dates long after the date of the summary, going through a subpoena pertaining to Jeffrey Clark and John Eastman to Fidelity completed on July 6, 2023. [Note: The release of this document exposes the banks of dozens of Trump associates, a fairly alarming privacy violation.]
The five pages of subpoenas focus on several topics, largely the following:
J6 $
Wire fraud
Misappropriation
Payments to lawyers
Bogus investigations
Obstruction
Credit reports
Most of this traces several prongs of investigation that were publicly reported at the time — largely picking up efforts of the January 6 Committee — showing that Trump raised money in the guise of election integrity, but then paid it to people like Brad Parscale or Dan Scavino.
Based on dates, this appears to be a key focus of Jack Smith once he was appointed
After squawking loudly (and to a significant extent, inaccurately) about the subpoenas, after doxing great swaths of the Republican Party, congressional Republicans decided they didn’t want to talk about the lucrative grift Trump took them for, in which Republican faithful paid Trump to lie.
As a result, the closest the full day deposition came to explaining how Trump abused the faith of his supporters was this exchange.
Q So did you develop evidence that President Trump, you know, was responsible for the violence at the Capitol on January 6th?
A So our view of the evidence was that he caused it and that he exploited it and 8 that it was foreseeable to him.
Q But you don’t have any evidence that he instructed people to crash the Capitol, do you?
A As I said, our evidence is that he in the weeks leading up to January 6th created a level of distrust. He used that level of distrust to get people to believe fraud claims that weren’t true. He made false statements to State legislatures, to his supporters in all sorts of contexts and was aware in the days leading up to January 6th that his supporters were angry when he invited them and then he directed them to the Capitol. Now, once they were at the Capitol and once the attack on the Capitol happened, he refused to stop it. He instead issued a tweet that without question in my mind endangered the life of his own Vice President. And when the violence was going on, he had to be pushed repeatedly by his staff members to do anything to quell it.
And then even afterwards he directed co-conspirators to make calls to Members of Congress, people who had were his political allies, to further delay the proceedings.
Trump deliberately stoked distrust to get his supporters to attack democracy.
January 6 was a violent insurrection. Never forget that.
But it was also an enormous fraud on the Republican Party.
https://www.emptywheel.net/wp-content/uploads/2022/02/Jan6_CapitolPoliceOfficerCrushed_SunStoryful_06JAN2021.jpg600900emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2026-01-06 08:36:502026-01-06 08:36:50January 6 Was a Violent Insurrection; It Was Also a Fraud Against the GOP Faithful
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.
https://www.emptywheel.net/wp-content/uploads/2026/01/Screenshot-2026-01-01-at-2.51.09-PM.png550552emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2026-01-01 10:17:292026-01-01 14:09:56Jim Jordan Buries His Own Cowardice in a Cowardly Document Dump
I am not surprised that Peter Skandalakis asked to dismiss the Georgia prosecution against Donald Trump. The fault for its dismissal lies primarily with Fani Willis for giving him the opportunity to dismiss it.
But Skandalakis’ dismissal is dishonest in many places and outright false in one case: notably, in his claim that Jack Smith concluded that he could not prosecute the case after SCOTUS interfered.
The strongest and most prosecutable case against those seeking to overturn the 2020 Presidential election results and prevent the certification of those votes was the one investigated and indicted by Special Counsel Jack Smith. Although Special Counsel JackSmith’s federal case encompassed evidence from multiple states, he ultimately concluded the federal case could not be prosecuted because of the U. S. Supreme Court’s decision in Trump v. United Statesand the re-election of President Donald J. Trump.
Special Counsel Jack Smith wrote in his report, “Conversely, a select few of Mr. Trump’s agents and elector nominees had insight into the ultimate plan to use the fraudulent elector certificates to disrupt the congressional certification on January 6 and willingly assisted…. In each of the targeted states, Mr. Trump and his co-conspirators successfully organized enough elector nominees and substitutes to gather on December 14, cast fraudulent electoral votes on his behalf, and send them to Washington, D.C., for the congressional certification.”28
The criminal conduct alleged in the Atlanta Judicial Circuit’s prosecution was conceived in Washington, D.C., not the State of Georgia. The federal government is the appropriate venue for this prosecution, not the State of Georgia. Indeed, if Special Counsel Jack Smith, with all the resources of the federal government at his disposal, after reviewing the evidence in this case and considering the U.S. Supreme Court’s decision inTrump v.United States, along with the years of litigation such a case would inevitably entail, concluded that prosecution would be fruitless, then I too find that, despite the available evidence, pursuing the prosecution of all those involved inState of Georgia v. DonaldTrump, et al.on essentially federal grounds would be equally unproductive.
The evidence had nothing to do with Smith’s decision to drop the case when Trump was reelected. Indeed, before the election he had laid out how he still planned to do so, as he laid out in his immunity brief.
This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created byTrumpfor resolving immunity claims; applies that framework to establishthat none of the defendant’s charged conduct is immunized because it either was unofficial or anypresumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen.
This was a cowardly and partisan dodge by Skandalakis, one that sacrifices the integrity of Georgia’s democracy.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-8.06.53-PM.png13041592emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-11-26 12:05:202025-11-26 13:35:49In Dismissing Georgia RICO Case, Peter Skandalakis Fabricates Jack Smith Conclusion
There were two competing letters published yesterday designed to frame Kash Patel’s efforts to frame Democrats with being mean to Donald Trump, for which (the NYT reports) Trump wants to be paid $230 million. They are:
A letter Jim Jordan sent to Pam Bondi, effectively recycling debunked Kash Patel claims to support a claim that John Brennan lied about the Intelligence Community Assessment.
I’m a well-established critic of Lanny Breuer, but the letter is substantive and direct. After mocking Josh Hawley’s claim that he was “tapped,” the letter shows how toll records have been used in various other investigations:
The Robert Hur investigation of Joe Biden.
Charging documents in five different investigations charged since Kash has become FBI Director.
In leak investigations, targeting Adam Schiff, Eric Swalwell, and staffers (including Kash Patel).
The Robert Menendez investigation.
But all that’s just set up for this passage, mocking Kash for his claim, made on Sean Hannity’s show while he was wearing a ridiculous jacket, that Jack Smith was trying to hide his use of toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”
[T]here is simply no support for FBI Director Patel’s recent assertion that Mr. Smith hid the toll records information so that “no one would find it,” or that Mr. Smith put the toll records in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”9 It is not clear what cyber place in a vault in a lockbox Director Patel is describing, but Mr. Smith’s use of these records is inconsistent with someone who was trying to conceal them. Paragraph 119 of the August 1, 2023 indictment describes some of the calls that were made to U.S. Senators on January 6, 2021, and footnote 132 of Volume 1 of the Special Counsel Report refers to the use of toll records in the investigation. Moreover, the precise records at issue were produced in discovery to President Trump’s personal lawyers, some of whom now serve in senior positions within the Department of Justice.
9 HANNITY: Patel: “We’re Just Warming Up” in Investigation of Alleged Tracking of GOP Senators, Fox News (Oct. 7, 2025), https://www.foxnews.com/video/6382234662112.
Even without this letter, sentient beings were able to point to the place in the indictment and the Jack Smith report where these toll records were described. And, as the letter notes, Trump’s attorneys — including Todd Blanche — got discovery on those toll records years ago, but did not challenge their use in a criminal case.
All this was quite clear to sentient beings. But not the staffers exploiting Chuck Grassley’s diminished capacities to make a stink about something very ordinary.
By comparison, the Jordan letter is shoddy even by his standards.
The ostensible purpose is to refer John Brennan to DOJ (but, significantly, not FBI) for testimony Brennan gave — in a hearing about the letter truthfully saying a bunch of spooks thought the Hunter Biden laptop had the hallmarks of a Russian information op — that mentioned the Steele dossier in passing. This may be an effort to predicate a case in DC after the case in Philly has stalled, but anyone aware of the law would question how comments about the Steele dossier were material to a hearing about the Hunter Biden letter, a point that Brennan even made at the time: “I don’t see any relevance to the Hunter Biden laptop issue now,” as quoted in Jordan’s letter.
More importantly, the letter appears to be an effort to launder debunked propaganda Kash Patel did years ago through Congress back into an investigation led by Kash Patel, something I’ve addressed in the past.
The key paragraph makes a number of claims, some of which are fabrications (and therefore commit the crime that Jim Jordan is referring), others of which are misrepresentations of prior reports that were themselves propaganda.
On January 6, 2017, the CIA, Federal Bureau of Investigation (FBI), and National Security Agency published a declassified version of an Intelligence Community Assessment (ICA) titled Assessing Russian Activities and Intentions in Recent US Elections. 3 The ICA stated, among other things, that Russia “developed a clear preference” for President Trump and “aspired to help” him win the election.4 This conclusion—now known to be false—was based in part on the Steele dossier, which “was referenced in the ICA main body text, and further detailed in a two-page ICA annex.”5 The Steele dossier was a series of reports containing baseless accusations concerning President Trump’s ties to Russia compiled and delivered to the FBI in 2016 by former British intelligence agent Christopher Steele.6 Subsequent investigations confirmed that the Clinton campaign and the DNC paid Steele via the law firm Perkins Coie and opposition research firm Fusion GPS to provide derogatory information about Trump’s purported ties to Russia, which resulted in the discredited dossier.7 In July 2025, the Trump Administration declassified numerous documents showing that the ICA’s main findings were false and that the Obama Administration knowingly fabricated the findings for the purpose of undermining the Trump Administration.8
3 OFF. OF THE DIR. OF NAT’L INTEL., ASSESSING RUSSIAN ACTIVITIES AND INTENTIONS IN RECENT US ELECTIONS (Jan. 6, 2017) [hereinafter “Russian Interference ICA”].
4 Id. at 1.
5 MAJORITY STAFF REPORT, H. PERM. SELECT COMM. ON INTEL., 116TH CONG., OVERSIGHT INVESTIGATION & REFERRAL: THE INTELLIGENCE COMMUNITY ASSESSMENT (ICA) “RUSSIA’S INFLUENCE CAMPAIGN TARGETING THE 2016 US PRESIDENTIAL ELECTION,” at 23 (2020) [hereinafter “HPSCI Report”].
6 See JOHN H. DURHAM, U.S. DEP’T OF JUST., OFF. OF SPECIAL COUNS., REPORT ON MATTERS RELATED TO INTELLIGENCE ACTIVITIES AND INVESTIGATIONS ARISING OUT OF THE 2016 PRESIDENTIAL CAMPAIGNS, at 11-12, 109-117 (2023) [hereinafter “Durham Report”].
7 See id. at 109-117; HPSCI Report, supra note 5, at 22-32; U.S. DEP’T OF JUST., OFF. OF THE INSPECTOR GEN., REVIEW OF FOUR FISA APPLICATIONS AND OTHER ASPECTS OF THE FBI’S CROSSFIRE HURRICANE INVESTIGATION, at v-xii (2019); Memorandum from HPSCI Majority Staff to HPSCI Majority Members, Re: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation (Jan. 18, 2018).
8 Sarah Bedford & Kaelan Deese, Russiagate definitive timeline: How new intelligence documents fit in, WASH. EXAM’R (July 26, 2025). [my emphasis]
The key claim in here — that what Jordan falsely says is the key claim of 2017 Intelligence Community Assessment, which he describes as, “that Russia ‘developed a clear preference’ for President Trump and ‘aspired to help’ him win the election,” is based on the Steele dossier — is based off two reports Kash substantially wrote (marked in blue). Never mind that it is only the key claim of the Intelligence Community Assessment if you have the thin skin of a Narcissist, never mind that any dispute is about how much evidence there was before discovering the June 9 meetings or Paul Manafort’s sharing of campaign information with Russian spies. That key claim had nothing to do with the subsequent investigation of Trump, which investigation had already been set into motion by Mike Flynn’s shitty OpSec.
But as I wrote extensively, the one dated 2020, showing that Congressional Republicans packaged up older claims and Russian spycraft after the Mueller Report definitively showed the Russia did prefer Trump and Trump did welcome that help, is an attempt to create a time machine to go back to the halcyon time before we knew all that.
Jordan, perhaps wisely, doesn’t try to lay out how all this fits together. He outsources it to a right wing propaganda outlet, outsourcing to them their credulity about the time machine effect going on.
Jim Jordan lied, shamelessly, when he alleged that that claim was shown to be false. And he lied, shamelessly, when he said that a report that affirmatively did not incorporate intelligence from the Steele dossier, choosing instead to only link it and specifically say it was not incorporated into analytical work (which backs Brennan, not Jordan), instead relied on the dossier.
This conclusion—now known to be false—was based in part on the Steele dossier, which “was referenced in the ICA main body text, and further detailed in a two-page ICA annex.”
If the intimation that Kash Patel’s hand-picked investigators breached Jim Comey’s attorney-client privilege in service of this conspiracy bears out, it only adds to the list of corrupt and possibly illegal things Kash has done in pursuit of this witch hunt. And that’s before you consider all the cops and prosecutors that get fired along the way.
Kash Patel may well be in a race against time. He needs to package up things before Comey gets them all thrown out before Andrew Bailey becomes eligible to act as FBI Director bypassing confirmation, in mid-December.
https://www.emptywheel.net/wp-content/uploads/2025/10/Screenshot-2025-10-22-at-13.41.19.png9481364emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-10-22 08:48:022025-10-22 08:48:02Kash’s “lockbox in a vault…in a cyber place where no one can see or search these files”
Aileen Cannon issued her ruling withholding any sharing of Jack Smith’s Volume Two — which she extended to thirty days after all appellate proceedings.
2. Attorney General Garland or his successor(s), the Department of Justice, its officers, agents, officials, and employees, and all persons acting in active concert or participation with such individuals, are enjoined from (a) releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice, or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof
3. This Order remains in effect pending further Court order, limited as follows. No later than thirty days after full conclusion of all appellate proceedings in this action and/or any continued proceedings in this Court, whichever comes later, the parties shall submit a joint status report advising of their position on this Order, consistent with any remaining Rule 6(e) challenges or other claims or rights concerning Volume II, as permitted by law. Any disagreements between the parties can be denoted separately.
She claims the report — which would only be released in redacted form — includes non-public information (and also revealed that Trump was claiming attorney-client privilege over some of the material).
Volume II includes detailed and voluminous discovery information protected by the Rule 16(d)(1) Protective Order entered in this case [ECF No. 27]. Much of this information has not been made public in Court filings. It includes myriad references to bates-stamped information provided by the Special Counsel in discovery and subject to the protective order, including interview transcripts, search warrant materials, business records, toll records, video footage, various other records obtained pursuant to grand jury subpoena, information as to which President-Elect Trump has asserted the attorney-client privilege in motions in this proceeding [ECF No. 571 (sealed); ECF Nos. 641, 656], potential Rule 404(b) evidence, and other non-public information.
Along the way, she notes that no one from Congress has asked for the report, but that the Democratic members of HJC called for its public release.
12. With respect to the Department’s assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira.10 Finally, although the Department refers generally to “legislative interest” concerning special counsels as a basis to deny Defendants’ Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now.
Note that she ignores Kash Patel’s pending confirmation proceedings.
Cannon also makes a patently false claim — that DOJ has never released Special Counsel information prior to the conclusion of criminal proceedings.
Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant—and absent a litigation-specific reason as appropriate in the case itself— sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now.
The Mueller Report did that: It included (but redacted) information on both the Prigozhin troll case and the Roger Stone one.
Ah well. I did say that Jamie Raskin would have been better off attempting to intervene personally.
Cannon, having released the order after folks at SDFL quit, now makes much of the fact that no one from SDFL is noticed on this matter.
Update: As a reminder, I posted on some of the stuff that would appear in the report here. It sounds like the report itself has a lot more description of surveillance footage.
https://www.emptywheel.net/wp-content/uploads/2022/09/Cannon.webp509916emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-01-21 10:21:492025-01-21 10:55:18Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days
In an interview with Marc Elias the other day, Dan Goldman made a number of alarming claims. He said that before the release of Jack Smith’s January 6 report, “we didn’t really know about … the extensive litigation that the Special Counsel had to go through just to get this evidence.” That is, Goldman admitted that he missed the unsealing, in October, of the very documents Jack Smith cited to describe that process (which I wrote about at the time). Goldman missed the opportunity to make a stink about this before the election.
Goldman also wondered “if Elon Musk and X, while he has owned it, has ever not cooperated in the same way [as they did in response to a warrant for Trump’s Twitter account] in a different case.” We know the answer to that: according to an opinion Chief Judge Boasberg unsealed (and first spotted by Kyle Cheney, who played a key role in liberating the Executive Privilege dispute), from January to March of last year, Xitter refused to turn over mere subscriber records in what sounds like a leak investigation.
Much later in the interview (after 19:00), Goldman said,
Volume Two of the report is going to provide a lot more information that we don’t know. The litigation in the January 6 case, including the memo outlining all of the evidence, has been so extensive that, as we see from Volume One, there really isn’t that much that we didn’t know. There was also an entire Congressional Committee that did this investigation. This has been exhaustively investigated. And yes they did get more evidence because they had grand jury power. They got more witnesses to speak than the January 6 Committee did. But we’ve known about that.
We know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others. And one of the things that has jumped out at me in that case is that in one of the filings, the Department of Justice, Special Counsel, said, that there evidence includes why Donald Trump retained the information illegally, and what he was planning to do with it. [my emphasis]
From there, Goldman went on to call for Merrick Garland to dismiss the case, which I’m not sure Garland can do without some judge going along (which was the hold up in the Mike Flynn case).
Now, as I have laid out, Jack Smith eschewed the opportunity to make new information available in Volume One of the report. For example, he didn’t explain why an investigation into Trump’s fundraising and spending ended without charges. Based on what we’ve seen in Volume One, I doubt we’d get the kinds of details Robert Hur provided in his 388-page report, describing every document that wasn’t charged and why not. I doubt we’d learn why the FBI believed there was a tie between a grant of clemency for Roger Stone and a document, classified Secret, about Emmanuel Macron, both found in Donald Trump’s own desk drawer. I doubt we’d learn why Trump compiled low-level classified information into a document with messages from a book author, a religious leader, and a pollster.
And I doubt we’d learn what Trump was planning to do with those classified documents.
I want to see the report. But I doubt it’ll include what Goldman hopes it will.
But it is also the case that we have already gotten a great deal of additional information about the investigation.
It’s not the case, for example, that “we know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others.” This filing describes that process at length, relying on both dozens of documents that Trump himself liberated and 302s from those involved, including a key White House Office of Records Management official and Mark Meadows. This section describes Meadows’ involvement, which (along with actions taken by a former Trump White House Counsel, probably Pat Philbin) led to the involvement of Biden White House Counsel Jonathan Su, the basis of Trump’s bogus claim that Biden’s White House pushed the investigation into Trump.
A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.
[snip]
Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id
[my emphasis, links added]
Exhibit D, cited to support a description of a former Trump official who warned that Trump faced criminal exposure, links to this complete 302, from someone whose potty mouth resembles Eric Herschmann. It describes a bunch of things:
How on November 21, 2021, he warned Trump to give the documents back: “Don’t give them a noble reason to indict you, because they will.”
How a “total moron” who resembles Boris Epshteyn insinuated himself with Trump with claims of voter fraud and subsequently tried to use something, perhaps claims fed to credulous reporters that he was serving a legal function, to cover for his past activities ( a document Trump himself liberated shows call records between this person resembling Epshteyn and a person resembling Chief of Staff designate Susie Wiles).
A February 2022 call in which someone resembling Tom Fitton told Trump he didn’t have to send documents back because of Fitton’s “Clinton Socks” ruling,
A prediction that Walt Nauta would be pardoned if he were charged with lying to the FBI.
But it also describes an extended description of someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.
Another dispute — about whether Jay Bratt threatened to retaliate against Stanley Woodward if he didn’t get Walt Nauta to cooperate — includes a long discussion about Kash’s testimony. It revealed how Kash tried to delay compliance with a grand jury subpoena indefinitely by hiring a lawyer already busy defending a January 6 seditionist, and when Kash did first testify, the aspiring FBI Director pled the Fifth repeatedly.
On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.
On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).
Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]
This is the same kind of extended discussion of the delays that Trump and his flunkies created that Goldman claimed, incorrectly, first became available in Volume One of Smith’s report. And it (plus details of Tim Parlatore’s efforts to stall ongoing searches) has been public since April.
Other disputes provided a bunch more information, including pictures, of where and how Trump stored the documents he withheld, including one of this box, in which Trump was storing a document classified Formerly Restricted (that is, a document pertaining to nuclear weapons), along with nine other documents, underneath a Christmas pillow and some bubble wrap (I annotated the photo to show that the documents charged in Counts 12 through 21 were found in it).
Here are discussions of what was hidden under the bubble wrap.
A passage in the 193-page 302 transcript from Chamberlain Harris (focusing on how she scanned documents including sensitive White House schedules) describes that the door to the storage closet had only the kind of lock you’d find in a residential bathroom — a pinhole they’d open with a tiny flat screwdriver.
Person 10 [Harris]: They used to unlock it for me, because you could lock it from the inside.
Mr. Thakur: Okay. This is obviously after a lock was placed there, they would unlock it for you?
Person 10: No, this was before.
Mr. Thakur: Okay. So are you talking about a lock to another door, or?
Person 10: It’s a door with a pinhole in it.
Mr. Thakur: A door with a pinhole?
Person 10: Like, I don’t know, a circle doorknob?
SA 41: Kind of like what you would find on residential door inside of a home? So it might have a lock like that one on one side of it then other side, rather than an actual place for a key, it’s sort of like a —
Person 10: Yeah.
SA 41: — very tiny screwdriver?
Person 10: Um-hmm.
SA 51: I see. But that was only on the inside of the door. So you — reasonably couldn’t lock it from the outside unless they used that little pin to reengage the lock from the outside?
In other words, there’s far, far more that got released as part of litigation in the documents case than the January 6 case.
And Dan Goldman, whose job it is to oversee such investigations, seemingly knows about none of that: Not the description of how the aspiring FBI Director stalled the investigation. Not the document claiming that the “declassify everything” claim Kash first made was a lie. And not the description of the back-and-forth with NARA that Goldman says he wants.
It’s all there in the docket. And has been (for the most part) since April.
If you want to know how Democrats failed to make more of a political case against Trump during the election, you can start with the fact that Dan Goldman — one of the Democrats’ most forceful voices on rule of law, a former TV personality, and a member of the House Judiciary Committee — knows almost nothing about what was made public in either of the federal cases against Donald Trump and as a result did little to make a big deal of that before the election.
https://www.emptywheel.net/wp-content/uploads/2025/01/Unhinged.png8681336emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-01-19 10:24:142025-01-19 14:08:55Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!
Like everyone else, I badly want to see Volume Two of the Jack Smith report. If it were a fulsome report, it might give us explanations for the kinds of documents Trump hid in his bathroom, it might explain why there was a grant of clemency to Roger Stone with some tie to a Secret document about Emmanuel Macron in Donald Trump’s desk drawer, and it might reveal more about Kash Patel’s efforts to help Trump lie about the documents. It might even describe what investigators might have learned if Walt Nauta had cooperated.
Given the ways that Jack Smith pulled his punches in Volume One, however, I’m far less optimistic the report is as expansive as it could have been if it had adopted Robert Hur’s approach to declination decisions. It’s more likely the report would offer explanations for why Smith charged the case in SDFL and why he didn’t charge 18 USC 2071 — both of which would be useful for those who don’t understand those issues, but still wildly unfulfilling.
If Volume One is any indication, Smith did not use his report to get out previously unknown details.
Plus, I’m not sure what good it would do anyway. The most interesting response to Volume One, in my opinion, was seeing a lot of the same pundits who had complained that Jack Smith hadn’t released more information publicly making it clear they didn’t realize that most of the factual discussion was cited directly to the immunity brief Smith fought to release before the election, in October. Thanks for proving my point that you weren’t paying attention to the stuff that was getting released! Not to mention the Garland whingers who, in their misreading of the Jack Smith report, confessed they had never been reading the public documentation about how the investigation proceeded and weren’t going to before using it to attack Garland. You all failed to make something of this investigation when it could have mattered. It’s not clear how you’ll do better with Volume Two.
I think the House Judiciary Committee letter calling on Merrick Garland to release the report — something I want too! — by dismissing the case against Nauta and Carlos De Oliveira is the same kind of misguided intervention. Particularly given DOJ’s emphasis in court filings that Jamie Raskin has a constitutional entitlement to review the document in his function as Ranking Member of HJC, just like Dick Durbin has a heightened interest given his duty to advise and consent to the Kash Patel confirmation.
I’m no genius on criminal procedure, but I simply don’t understand how this would work. DOJ can’t just dismiss the case. They have to have to dismiss it somewhere in court, just like Bill Barr tried with Mike Flynn. I’m not even sure where you would do that, because there’s not currently a pending case. There’s an appeal of the complete dismissal of the case in the 11th Circuit, where you could dismiss the appeal. And there’s Aileen Cannon’s courtroom, where the legal status of the case is that everything that happened after November 18, 2022, after Jack Smith was appointed, is unconstitutional. If Cannon’s ruling holds, then arguably even writing the report was unconstitutional (which is why it was dumb, in my opinion, not to have written a two-part Volume Two, breaking out the stuff (to include the Kash Patel interview) that happened before Smith was appointed. Aileen Cannon is not going to let you dismiss the case, I promise you.
There’s something being missed in this discussion that’s worth pondering. It’s not Merrick Garland who made the decision to withhold Volume Two until Trump destroys the remaining case against Nauta and De Oliveira. It was Jack Smith who recommended that course of action.
Because Volume Two discusses the conduct of Mr. Trump’s alleged co-conspirators in the Classified Documents Case, Waltine Nauta and Carlos De Oliveira, consistent with Department policy, Volume Two should not be publicly released while their case remains 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.
Given what we saw in Volume One, there are multiple possible reasons he may have made that recommendation. Possibly, as he did in Volume One, Smith is just trying to adhere to normal procedure as much as possible, to prove that he and any lawyers who attempt to remain at DOJ after next week never tried to pull a fast one on Trump. Possibly, Smith simply believes the legal posture of the case, in which ceding Aileen Cannon’s view that everything that happened after November 18, 2022 is unconstitutional would concede the report is too, makes releasing it impossible at the moment.
Possibly someone involved with all this believes there’s a different way to get the volume released.
Again, given what we see in Volume One, I assume it’s one of the first reasons: It really is department policy not to harm the trial rights of defendants (Mueller succeeded in releasing his report even though both Roger Stone and Yevgeniy Prigozhin’s trolls still had to stand trial, which led to many squabbles about redactions). For whatever well- or ill-considered or naive opinions, Smith really is trying to reassure everyone that everything is normal.
That said, there are some reasons to believe the report won’t get destroyed right away. One is that several people have already FOIAed it, creating legal problems (that Trump and possibly even Pam Bondi don’t care about) if it disappears. A far stronger one is that to investigate anyone from Jack Smith’s team, you need to preserve Jack Smith’s records.
I can think of several ways this report might still be liberated via other means.
But it’s worth noting that when it comes time to make Nauta’s appeal go away, every single person Trump wants at DOJ has a conflict: aspiring Deputy Attorney General Todd Blanche was Trump’s attorney on this, aspiring Solicitor General John Sauer his appeals attorney. Emil Bove, who will serve in the unconfirmed position of PADAG and will run the department starting Monday until others are confirmed, was also on Trump’s Florida team. And Pam Bondi joined an amicus before the 11th.
When Bondi, at least, was asked about her many conflicts in her confirmation hearing, she gave the standard rote answer: that she would consult with the career ethics officials at DOJ. That amounted to a tacit, non-binding commitment that she (and Bove, who’ll get there before her) won’t eliminate those key career officials. If that were to include Brad Weinsheimer, who supervised all of the Special Counsels Garland approved (and may have influenced the unsatisfying scope of Smith’s final report), that would put him the middle of these decisions.
As noted, even while DOJ seems to be pursuing a least-damage approach with Volume Two, they are establishing the prerogatives of Congress to access this report — and not just the report, but even underlying 302s from the investigation.
The Department has historically made materials available for in camera review by members of Congress as part of the process to accommodate the Executive Branch’s interests in protecting the confidentiality of sensitive information while ensuring that Congress can fulfil its own constitutional oversight functions.2 For example, when a congressional committee sought FBI Form 302 interview reports referenced in the Final Report of Special Counsel Robert Mueller, the Department reached an agreement with the Committee to make those reports available in camera, at the Department, pursuant to specified terms, with redactions to protect privileged and grand jury information. See Supplemental Submission Regarding Accommodation Process ¶¶ 1-2, In re: Application of the Committee on the Judiciary, U.S. House of Representatives, No. 1:19-gj-00048- BAH, ECF No. 37 (D.D.C. October 8, 2019).
2 Congress has recently, on multiple occasions, taken the position that it has a particularized legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels. See., e.g., Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 43, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 4, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024); Plaintiffs’ Motion for Preliminary Injunction or, in the Alternative, for Expedited Summary Judgment at 10, Committee on the Judiciary, U.S. House of Representatives v. Garland, No. 1:24-cv-01911, ECF No. 11 (D.D.C. Aug. 16, 2024).
Wouldn’t it be better for Raskin to at least assert his own constitutional prerogative here, rather than a letter that doesn’t address the procedural means via which Garland could dismiss the case? Particularly given that, in the vacuum created by his silence, Trump is making Raskin’s partisanship cause to keep the document sealed?
Thus, the government is not seeking, as it claims, to aid Congress in exercising its “oversight functions.” Doc. 703 at 3. Instead, by delivering Volume II to unashamed partisans, the government strategically aims to ensure the Volume’s public release. Although the government claims that a purported “agree[ment] to specified conditions of confidentiality,” id. at 4, would alleviate these concerns, it would do nothing of the sort. As the government well knows, the Constitution prohibits any enforceable restrictions on the ranking members’ use or disclosure of information in furtherance of their official duties. The ranking members could, for example, stand on the floor of the House or Senate and disclose the entire contents of Volume II, without fear of any legal consequence. U.S. CONST. art. I, § 6, cl. 1 (providing for Speech or Debate Immunity); Hutchinson v. Proxmire, 443 U.S. 111, 130 (1979) (“A speech by [a Senator] in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record.”). Thus, whatever “confidentiality agreement” the government purports to adopt (the terms of which the government has pointedly not provided the Court), it is entirely illusory, because no such agreement is enforceable. Disclosure to the ranking members is functionally equivalent to public disclosure. This, in turn, poses an extraordinary danger to President Trump’s ability and right to prepare for the Presidency free of such unconstitutional attacks by the incumbent administration.
If this report doesn’t come out, it can be made into an anvil to hang over the entire leadership of DOJ. To make it one, though, you need to establish clearly that Congress has equities in this document, too, and any abridgment of those equities will provide opportunity for Congress to intervene with DOJ.
Thus far, Congressional Democrats have chosen a far less effective route.
https://www.emptywheel.net/wp-content/uploads/2021/02/384px-Jamie_Raskin_Official_Portrait_2019.jpg480384emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-01-17 07:10:232025-01-17 07:34:33On the Misguided Tactical Conversations about Volume Two of the Jack Smith Report
In a post in November and a podcast appearance with Harry Litman, I argued that the Special Counsel regulations mandating that prosecutors describe declination decisions, as well as prosecution decisions, might produce the most interesting part of Jack Smith’s report.
Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
After all, Robert Hur wrote a humdinger of a 388-page report that was nothing but declination decisions.
But in my opinion, neither Jack Smith nor David Weiss adequately fulfilled the terms of that mandate.
To be sure, Jack Smith did include several important sections describing declination decisions. As I laid out here, Smith described why prosecutors had not charged Trump with insurrection, the sole charge that could have disqualified him from returning to the presidency. A footnote explained that prosecutors had considered charging Trump under the Anti-Riot Act, but courts have struck down parts of it. The footnote also explained that because prosecutors “did not develop proof beyond a reasonable doubt that the conspirators specifically agreed to threaten force or intimidation against federal officers,” (presumably including Mike Pence), they did not charge Trump with conspiracy to injure an officer of the United States.
In a separate paragraph, Smith provided an unsatisfying answer about why he didn’t charge any of Trump’s co-conspirators.
Before the Department concluded that this case must be dismissed, the Office had made a preliminary determination that the admissible evidence could justify seeking charges against certain co-conspirators. The Office had also begun to evaluate how to proceed, including whether any potential charged case should be joined with Mr. Trump’s or brought separately. Because the Office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump–the head of the criminal conspiracies and their intended beneficiary–this Report does not elaborate further on the investigation and preliminary assessment of uncharged individuals. This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.
My suspicion is that the prosecution, which included two prosecutors who dealt with the aftermath of Trump pardoning his way out of criminal exposure in the Russian investigation, recognized it was not worth charging others until such time as Trump couldn’t pardon their silence. That is consistent with the seeming late addition of a Ken Chesebro interview, which seems to reflect his troubled efforts to cooperate in state cases. But if this investigation looked like it did because of Trump’s past success at pardoning his way out of criminal exposure, it would be really useful to explain that.
It would have been useful, too, to point out that the same Speech and Debate protections that created a 16-month delay in obtaining texts from Scott Perry’s phone also made it impossible to charge any of the Members of Congress who facilitated Trump’s coup attempt. Those who don’t understand the breadth of Speech and Debate need to be told that.
So Smith did include some of his declination decisions, but some of those discussions are less than satisfying.
But there are two areas where more might have been useful. For example, for some time, prosecutors investigated whether Trump used funds raised for election integrity on other things, like providing big contracts to people who had remained loyal to him. If Trump defrauded his rubes but for some reason prosecutors couldn’t charge him for it, it would be useful to lay that out. That prong of the investigation is unmentioned in the report, which in many respects appears designed to avoid antagonizing Trump.
There’s a more important discussion that does appear in the report, but which is not treated as a prosecutorial decision. In the section on Litigation Challenges, Smith includes a long discussion titled, “Threats and Intimidation of Witnesses.”
A significant challenge that the Office faced after Mr. Trump’s indictment was his ability and willingness to use his influence and following on social media to target witnesses, courts, and Department employees, which required the Office to engage in time-consuming litigation to protect witnesses from threats and harassment.
Mr. Trump’s resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies. A fundamental component of Mr. Trump’s conduct underlying the charges in the Election Case was his pattern of using social media-at the time, Twitter-to publicly attack and seek to influence state and federal officials, judges, and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr. Trump’s scheme. After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed. See ECF No. 57 at 3 (one witness identifying Mr. Trump’s Tweets about him as the cause of specific and graphic threats about his family, and a public official providing testimony that after Mr. Trump’s Tweets, he required additional police protection). In the context of the attack on the Capitol on January 6, Mr. Trump acknowledged that his supporters “listen to [him] like no one else.” 260
The same pattern transpired after Mr. Trump’s indictment in the Election Case. As the D.C. Circuit later found, Mr. Trump “repeatedly attacked those involved in th[e] case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony,” Trump, 88 F.4th at 1010. Those attacks had “real-time, real-world consequences,” exposing “those on the receiving end” to “a torrent of threats and intimidation” and turning their lives “upside down.” Id. at 1011-1012. The day after his arraignment, for example, Mr. Trump posted on the social media application Truth Social, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Id. at 998. The next day, “one of his supporters called the district court judge’s chambers and said: ‘Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.'” Id. 26 l Mr. Trump also “took aim at potential witnesses named in the indictment,” id. at 998-999, and “lashed out at government officials closely involved in the criminal proceeding,” as well as members of their families, id. at 1010-1011.
To protect the integrity of the proceedings, on September 5, 2023, the Office filed a motion seeking an order pursuant to the district court’s rules restricting certain out-of-court statements by either party. See ECF No. 57; D.D.C. LCrR 57.7(c). The district court heard argument and granted the Office’s motion, finding that Mr. Trump’s public attacks “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” ECF No. 105 at 2. Because no “alternative means” could adequately address these “grave threats to the integrity of these proceedings,” the court prohibited the parties and their counsel from making public statements that “target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” Id at 3. The court emphasized, however, that Mr. Trump remained free to make “statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that [he] is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of[his] current political rivals.” Id. at 3.
Mr. Trump appealed, and the D.C. Circuit affirmed in large part, finding that Mr. Trump’s attacks on witnesses in this case posed “a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function,” with “the undertow generated by such statements” likely to “influence other witnesses” and deter those “not yet publicly identified” out of “fear that, if they come forward, they may well be the next target.” Trump, 88 F.4th at 1012-1013. Likewise, “certain speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of th[e] case,” since “[m]essages designed to generate alarm and dread; and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration of justice.” Id at 1014. [snip]
Sure, this was treated as a litigation issue. But, in theory, there were alternative means to prevent Trump from attacking witnesses. When Jan6er Brandon Fellows — like Trump accused of obstruction — made similar threats, but without the big mouthpiece that makes it so dangerous, Trump appointee Trevor McFadden put him in an extended pretrial detention. You were never going to be able to treat Trump like a normal pretrial defendant, but shouldn’t you make that point?
More importantly, witness intimidation is also a crime. It’s the same statute, 18 USC 1512, under which Trump was charged. In fact, when Trump challenged his gag before the DC Circuit, Patricia Millett asked John Sauer where criminal witness tampering ended and the kinds of threatening language he was using began (and she treated the means by which Trump makes threats at length in her opinion upholding much of the gag).
Judge Millett then tries a different tack. She wants to know if Sauer concedes that a trial judge can constitutionally limit a criminal defendant’s speech in any way beyond what’s already limited by criminal laws, like the witness tampering statute. She notes that the Supreme Court’s conception of even the clear and present danger test is still that it is a balancing test that requires consideration of the weighty constitutional interest in protecting the integrity of a criminal trial as well as the First Amendment interests of the defendant.
Sauer responds that Brown guarantees the defendant “absolute freedom” on core political speech.
“So there is nobalance,” says Judge Millett. She adds that calling it “core political speech” begs the question of whether it is in fact political speech or whether it is speech “aimed at derailing or corrupting the criminal justice process.” Sauer responds that Trump’s campaign speech is “inextricably entwined” with freely responding to the entire election interference prosecution.
Trump’s ability and willingness to sic mobs on all his enemies is the core of his conduct, both on January 6, during this litigation, and going forward. And the incoming Solicitor General argued that such threats and intimidation is “core political speech.”
It is the reason he threatens democracy in America.
Yet in discussing his thinking about how to deal with the threat posed by Trump’s threats, Smith didn’t even discuss why Trump could threaten Mike Pence in advance of a trial in which Pence would be expected to testify about how Trump almost got him assassinated without being charged with witness tampering.
With no awareness, Trump’s witness tampering became a litigation challenge, rather than the crime it might be treated as for anyone else.
Which brings me to David Weiss’ report, which is nothing short of pee my pants hysterical. It is riddled with procedural and evidentiary problems, and wild refashionings of the public record. Though I commend Derek Hines for finally ending his practice of fabricating what Hunter Biden’s memoir says, fabrications he relied on repeatedly to convince Judge Noreika there was no selective prosecution and to convince the jury of Hunter’s guilt; I hope to return to this to show that, by abandoning his fabrications, Hines actually proves he didn’t have the evidence to prosecute Hunter he claimed to have.
Much of the report is a “doth protest too much” effort to claim that the investigation wasn’t riddled with political influence. But tellingly and fucking hilariously, all those complaints are directed to Joe Biden, including this accusation:
Politicians who attack the decisions of career prosecutors as politically motivated when they disagree with the outcome of a case undermine the public’s confidence in our criminal justice system.
Weiss blames Joe Biden for undermining the public’s confidence in our criminal justice system even though his discussions of Hunter Biden’s claims of selective prosecution, Weiss made no mention of the very specific references Hunter made to Trump’s interventions in the case, including Trump’s public attack on the outcome of the original plea deal that contributed, according to Weiss’ own sworn testimony, to threats that led him to worry for the safety of his family.
“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”67
“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”68
“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .” 69
[snip]
“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. . . . ”
After spending much of his report attacking Joe Biden, Weiss claimed, “when politicians expressed opinions about my conduct, I ignored them because they were irrelevant.”
I hope to lay out all the other hilarity before such time as Weiss gets dragged before Congress.
Weiss’ charging decisions have flaws. My favorite is how, after dutifully laying out that Principles of Federal Prosecution require considering whether the suspect “is subject to effective prosecution in another jurisdiction,”
Even when a prosecutor determines that the person has committed a federal offense and that the evidence is sufficient to obtain a conviction, the Principles require that he also assess whether three other factors exist that may counsel against prosecution:
[snip]
(2) the person is subject to effective prosecution in another jurisdiction; or
Weiss then ignores the fact that Hunter was subject to charges in Delaware, which declined to prosecute.
It’s in the declinations, though, where David Weiss proves he’s falsely disclaiming selective prosecution. Several times, Weiss plays coy rather than explaining why he didn’t charge things, like tax crimes associated with 2014 and 2015, even though he stated under oath in November 2023 that he would have the “opportunity in the submission of a report to address such matters.”
19 26 U.S.C. § 6103(a) prohibits the disclosure of “return information,” which includes information disclosing “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Id. § 6103(b)(2)(A). Accordingly, I cannot publicly discuss any other tax years that may have been under investigation. See Snider u. United States, 468 F.3d 500, 508 (8th Cir. 2006).
I assume Biden is happy that Weiss didn’t lay out how Weiss was still pursuing Kevin Morris’ support for Hunter even after the guilty verdicts (but as I’ll show one of his temporal games involves just that),
President Biden has chosen to issue a “Full and Unconditional Pardon” for Mr. Biden covering “those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.” 152 Accordingly, I cannot make any additional charging decisions as to Mr. Biden’s conduct during that time period. It would be inappropriate to discuss whether additional charges are warranted.
But Weiss didn’t have the integrity, as Jack Smith did, to admonish, “This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.” He lets the rabid mobs believe they are.
It’s in how Weiss buries his own selective prosecution where his declinations are most corrupt. In his letter conveying the report to Merrick Garland, he describes that he is adhering to Department policy by not identifying uncharged third parties.
Therefore, in drafting this report, I was mindful of Department policies that caution restraint when publicly revealing information about uncharged third parties. Specifically, with respect to “public filings and proceedings,” Justice Manual § 9-27.760 provides that prosecutors “should remain sensitive to the privacy and reputation interests of uncharged parties,” and that it is generally “not appropriate to identify . . . a party unless that party has been publicly charged with the misconduct at issue.” 7 The Justice Manual also sets forth factors to guide the disclosure of information about uncharged individuals, such as their privacy, safety, and reputational interests; the potential effect of any statements on ongoing criminal investigations or prosecutions; whether public disclosure may advance significant law enforcement interests; and other legitimate and compelling governmental interests.
As a result, David Weiss doesn’t explain why he prosecuted Hunter Biden for lying on a gun form and he prosecuted Biden nut Alexander Smirnov for lying to his FBI handler in an attempt to frame Joe Biden, but he didn’t prosecute anyone from the gun store who allegedly engaged in the same kind of conduct that Hunter Biden and Alexander Smirnov did: make a false statement on a gun form and also coordinate a story in an effort to … create a political attack on Joe Biden during an election year.
The reasonable reasons why Weiss decided to immunize Ron Palimere yet charge Hunter all debunk much of the rest of his report, specifically with regards to deciding there was plenty of evidence to charge a gun crime in 2023, before entering into the failed plea deal. Either prosecutors knew Palimere had doctored the form when Weiss made that supposed prosecutorial decision, or (as he implied in court filings) he only discovered it when Hunter’s lawyers raised it, and he gave Palimere immunity so he could still win conviction against Hunter, in which case he never looked at the evidence before charging Hunter (which is consistent with virtually every other fact in the case).
Still, it’s selective prosecution. Prosecute the gun crime that Republicans — including Palimere — demanded be prosecuted, but immunize Palimere, who testified to treating other VIP customers similarly.
And Smith demonstrates that, contra Weiss, one can adhere to Justice Manual requirements yet still admit there was another suspected crime. In his section explaining why he didn’t charge Trump’s co-conspirators, he revealed that he did refer a subject of the investigation to another US Attorneys office.
In addition, the Office referred to a United States Attorney’s Office for further investigation evidence that an investigative subject may have committed unrelated crimes.
Weiss could have used a similar approach to describe that he immunized someone — someone who would pose an ongoing risk to the public if he continues to engage in the same behavior — for effectively the same crime for which he prosecuted Hunter Biden.
But that would give up his entire game.
Whatever else these Special Counsel reports reveal about our justice system, the blind spots both Special Counsels use to coddle Trump confirm that Special Counsels will never be able to hold Trump accountable for the existential threat he poses to democracy.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-09-at-8.06.53-PM.png13041592emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-01-16 11:01:122025-01-17 05:03:14The Inadequate Declination Discussions in Both Special Counsel Reports
