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Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days

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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.

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Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!

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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.

I tried to put these pictures in context in this post and this post.

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?

Person 10: You would just lock it when you left.

Finally, also in April, we got both the interview transcript and grand jury transcript from Walt Nauta.

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.

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Fridays with Nicole Sandler

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Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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On the Misguided Tactical Conversations about Volume Two of the Jack Smith Report

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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.

Which Garland adopted.

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?

The government does this despite knowing that these political actors will have every ability and incentive to use such information to undermine President Trump’s transition and his ability to govern our Nation moving forward.2 Nor is there any material doubt the ranking members will do so, given their immediate politicking on Volume I of Smith’s report, including extensive and hyperbolic commentary on the contents of that Volume. See Raskin, Ranking Member Raskin’s Statement on Special Counsel Jack Smith’s Report on President-Elect Donald Trump’s Election Subversion and Incitement of Insurrectionary Violence (Jan. 15, 2025); Durbin, Durbin Statement On Former Special Counsel Jack Smith’s Report On Trump’s Interference In The 2020 Election (Jan 14, 2025).

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.

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The Inadequate Declination Discussions in Both Special Counsel Reports

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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 no balance,” 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.

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What Jack Smith Didn’t Say about the January 6 Investigation

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As part of Kyle Cheney and Josh Gerstein’s summary of the Jack Smith report, they argued that “Smith [came] to Garland’s defense” regarding his conduct of the January 6 investigation before Smith was appointed, pointing to Smith’s review of certain legal fights, to include the Executive Privilege fight.

Smith comes to Garland’s defense

A common sentiment on the left is that Garland was too deferential to Trump after Joe Biden took office and failed to unleash the full might of the department on the former president for nearly two years. The delay, critics say, made it much more difficult for Smith — once he was appointed in November 2022 — to bring Trump to trial before the 2024 election.

But Smith’s report emphasized that the Justice Department was aggressively investigating leads related to Trump long before the special counsel’s tenure began. Litigation tactics by Trump and his allies, Smith argued, were the key factors that slowed the process to a crawl.

For example, Twitter, newly purchased by Elon Musk, delayed Smith’s effort to access Trump’s account data for weeks despite a court order that ultimately resulted in the company being held in contempt and fined $350,000.

It took Smith more than a year to obtain text messages between Rep. Scott Perry (R-Pa.) and Trump DOJ official Jeffrey Clark. And the department spent months fighting to access communications of John Eastman, a lawyer who helped devise Trump’s last-ditch efforts to remain in power.

The most protracted battles of all stemmed from Trump’s “broad invocation of executive privilege to try to prevent witnesses from providing evidence,” Smith wrote. It took months of secretive legal proceedings to secure testimony from Trump White House aides such as Mark Meadows, Dan Scavino and Pat Cipollone. Former Vice President Mike Pence also resisted testifying until a court ordered him to reveal some — but not all — details about his interactions with Trump. Smith noted that judges broadly rejected Trump’s privilege claims, with one holding that he was engaged in an “obvious” effort to delay the investigation.

That led to Garland whingers like Ryan Goodman to imagine he knows better than Cheney and Gerstein, who between them have been among the most aggressive in liberating and reporting on documentation pertaining to the investigation. Goodman pointed to a misleading passage in Smith’s report which dates the Executive Privilege fight to August 2022, which describes when “executive privilege litigation” occurred (my emphasis).

Most of the executive privilege litigation in this case took place in five sealed proceedings between August 2022 and March 2023 concerning the testimony of fourteen witnesses in total. See Media Access ECF No. 32 (notice attaching district court orders and memorandum opinions). In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s, including by issuing subpoenas for testimony before the grand jury.

Goodman complained that it took “nineteen months” after January 6 before DOJ “‘began to seek’ former USG officials testimony.”

“In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump’s.” Nineteen months after Jan. 6: DOJ “began to seek” former USG officials testimony.

For added context: August 2022 is after the House Select Committee had already completed its summer 2022 public hearings.

Other data show the slow start.

George Conway, piggybacking off Goodman’s error, claimed this started “*after* the House Jan. 6 Committee had held eight of its nine televised evidentiary hearings.”

Only, Goodman was misreading the Smith report and in the process demonstrating that he had not read the underlying documents.

The first opinion listed in Jack Smith’s appendix on the Executive Privilege fight, 22-gj-25, describes that the fight actually started in June, when prosecutors got approval to disclose grand jury materials and used it to write subpoenas, almost certainly sent to Marc Short and Greg Jacob. That passage makes clear that prosecutors got the White House Counsel to waive Executive Privilege (thereby adhering to the DOJ contacts policy), but Trump stalled for several weeks, and then got the witnesses’ attorneys to start asserting privilege.

So, contrary to Conway’s mistaken claim, this started no later than the first televised January 6 Committee hearing on June 9 (and probably, because prosecutors had already gotten approval to share grand jury information, even before that one).

Smith’s representation of these legal fights pertained to “litigation” — the actual legal filings — and only to the extent they continued into his own work. That’s evident from his appendix, which excludes some known legal fights. Indeed, Cheney and Gerstein actually themselves overstate what Smith includes in his report: While he included the relevant docket in his appendix, Smith barely addressed the 16-month fight (starting in August 2022) over the content in Scott Perry’s phone in the text of his report (his Speech and Debate discussion mostly pertained to Mike Pence’s fight in early 2023). And Cheney and Gerstein suggest that Smith addressed the fight over content from John Eastman, which Smith did not (nor did he include those filings in the report). That fight began sometime before May 26, 2022, by which point Beryl Howell had had hearings on a filter protocol for email accounts including Eastman and others (Cheney wrote more about that fight here).

To be clear: as far as is known, Goodman is only off by two months in his claim that DOJ did not try to speak to White House personnel until August 2022; it was June. But both he and Conway are wrong that the J6C hearings preceded this fight. You can certainly believe, as Goodman obviously does, that the best way to conduct the investigation was to start with White House personnel who would and did loop in Trump (and, as it happened, hasten the time he declared his candidacy), rather than starting with Co-Conspirator #1 and then #2, as DOJ proceeded. Goodman had no way of knowing when he started this complaint that SCOTUS would throw out much of the testimony from White House officials anyway, but he does now. If we’re engaging in counterfactuals, we can say with some confidence that approach would have been stymied even more effectively by SCOTUS.

Goodman also complained today that DOJ pursued the money trail and suspected communications with the Proud Boys and Oath Keepers immediately, both of which theories had solid evidence (likely arising from the mishandled Brandon Straka prosecution and the Owen Shroyer arrest) behind them. The money trail ended up being a dry hole; the comms angle ended up being inconclusive. But that’s the kind of thing Goodman and his ilk were demanding in real time — multiple prongs to pursue the case. Follow the money!

Instead, prosecutors’ most productive 2021 efforts appears to be getting an SDNY judge to allow DOJ to use the existing Special Master review for phones seized from Rudy Giuliani in April 2021 to prioritize obtaining the January 6 content. DOJ started with Co-Conspirator #1, and did so in a way that Trump had limited ability to obstruct. And from there, they seized one after another phone: John Eastman and Jeffrey Clark in June 2022, Scott Perry in August 2022, Boris Epshteyn and Mike Roman in September 2022, all of which would have had delays (not reflected in Jack Smith’s report because none of those have been unsealed) because of attorney-client, Speech and Debate, or technical exploitation issues, yet all of which would have been necessary given their reliance on encrypted apps. (This post argues that Smith likely didn’t get the content of Roman and Epshteyn’s phones until after he first indicted Trump.) You were never going to avoid getting the co-conspirator phones, because this coup was planned on encrypted apps and all of them fought disclosure. It appears that DOJ opportunistically seized the first of those on the first day there was a confirmed DAG to approve doing so. It is also clear that that wasn’t enough.

But if you’re going to make these complaints about what you read in Jack Smith’s report, you should note what else Smith said. The January 6 Committee work “comprised a small part of the Office’s investigative record,” but before Smith could use anything from J6C, prosecutors first had to “develop[] or verif[y those facts] through independent interviews and other investigative steps.”

The Office’s investigation included consideration of the report issued on December 22, 2022, by the U.S. House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Capitol, as well as certain materials received from the Committee. Those materials comprised a small part of the Office’s investigative record, and any facts on which the Office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps. During the prosecution of the Election Case, Mr. Trump alleged that the Select Committee and Special Counsel’s Office were one and the same and sought additional discovery about the Select Committee’s work. The district court rejected the claim. See ECF No. 263 at 47 (concluding that Mr. Trump has “not supplied an adequate basis to consider the January 6 Select Committee part of the prosecution team”). Regardless, the Office provided or otherwise made available to Mr. Trump in discovery all materials received from the Select Committee. See ECF No. 263 at 47 (“the Government states that it has already produced all the records it received from the Committee”).

We know from the immunity appendix that Jack Smith had productive follow-up interviews with Bill Barr, Ronna McDaniel, and Jason Miller, among others, to say nothing about more extensive cooperation with Eric Herschmann and Mike Pence’s privilege-waived interview(s).

But validating what J6C did could not start until J6C released transcripts in December 2022, after a 3-7 month delay.

The timeline below reflects the delay, from April to December 2022, in getting J6C transcripts (in part for good reasons; once DOJ got them, they were going to have to share with all January 6 defendants). The important delay, however, came in June, when prosecutors realized they had pending events, most obviously the Proud Boys trial, which for discovery reasons and to validate their most important cooperating witness, Jeremy Bertino, they needed to delay (and did, from August to December 2022) until those transcripts were released. At that point they believed those transcripts would come out in early September, which is what drove their trial schedule; but they didn’t come out until December.

This post and this post describes the predictable damage that that delay did to the Proud Boys case (which guilty verdict would be necessary to implicate Trump in insurrection). This post describes how prosecutors were able to use J6C transcripts that were done by June 2022 to identify the single most direct ask from Trump via Rudy Giuliani to overturn votes (one which likely relied on having exploited Rudy’s phone). Again, that clarification was delayed by 6 months. If you want to complain about delays — and there definitely appears to have been a delay from February to May 2022 when (per that famous WaPo story) FBI resisted that prong of the investigation — then you need to complain as well about the J6C delay of the same length.

But it’s not clear any of this would matter. SCOTUS had the ability, which they exercised, to stall all of this; had Trump lost, SCOTUS still would have gotten at least a second chance to weigh in before trial. And unless Smith superseded to add insurrection charges, Trump still would not be disqualified from running for office.

Barring Mitch McConnell or John Roberts doing the right thing, this battle was lost politically. And no amount of second guessing strategic decisions that ended up being auspicious given SCOTUS’ subsequent rewriting of the Constitution can change that. Indeed, the second guessing distracts from effective efforts to minimize Trump’s damage going forward.

Update: I’ve changed the language regarding prosecutors’ search of comms showing ties between the militias and Trump. I’ve added the Oath Keepers, whose ties to Stone were a subject of the investigation even before Garland was confirmed. I’ve deemed the comms angle inconclusive rather than a dry hole. Roger Stone was ultimately implicated in the Proud Boys’ obstruction of the vote certification via his actions at a January 3 rally in Florida (though not via the Proud Boy leaders). In December 2023, prosecutors took steps to more concretely lay out how Trump had sparked Proud Boy organizing.

Timeline

January 4, 2021: DC authorities seize Enrique Tarrio’s phone

January 25, 2021: Stop the Steal VIP Brandon Straka arrested; DOJ IG opens probe into Jeff Clark and others

February 17, 2021: First allegedly cooperative interview with Straka (Straka ultimately provided details on Ali Alexander’s Stop the Steal list, among other things, but the FBI almost certainly mishandled the entire Straka case, including by not probing his role at TCF Center in Michigan)

March 5, 2021: Second allegedly cooperative interview with Straka

March 11, 2021: Merrick Garland sworn in; in first meeting with investigators he encourages them to follow suspected money laundering behind payment for the rally

March 17, 2021: DOJ makes first tie between Oath Keepers investigation and Roger Stone

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ obtains warrant targeting Rudy Giuliani’s cell phones in Ukraine investigation

April 28, 2021: DOJ seizes multiple devices from Rudy, including the phone he used leading up to January 6

June 23, 2021: First Oath Keeper who interacted with Stone enters into cooperation agreement

August 19, 2021: Alex Jones sidekick Owen Shroyer, who participated in Friends of Stone list and served as a communication hub between Proud Boys and others, arrested

September 2021: DOJ subpoenas records from Sidney Powell grift

September 3, 2021: SDNY makes an ultimately successful bid to review all content on Rudy’s devices for privilege (making such content immediately available if and when DOJ obtains January 6 warrant targeting Rudy)

Fall 2021: Thomas Windom appointed to form fake elector team

October 28, 2021: Merrick Garland tells Sheldon Whitehouse DOJ is following the money of January 6

November 2, 2021: Special Master Barbara Jones releases first tranche of materials (through date of seizure in April 2021) from Rudy’s phones, including device containing many of Rudy’s January 6 communications

November 22, 2021: Trump appointee Carl Nichols asks James Pearce whether 18 USC 1512(c)(2) might be applied to someone like Trump (he would go on to issue an outlier opinion rejecting the application)

December 2021: NARA and Mark Meadows begin process of completing his record of PRA-covered communications

December 10, 2021: Judge Dabney Friedrich (a Trump appointee) upholds application of 18 USC 1512(c)(2) to January 6

January 5, 2022: Merrick Garland reiterates that DOJ is investigating the financial side of January 6

Mid-January 2022: DOJ finally obtains contents of Tarrio’s phone

January 19, 2022: Jones releases remaining content from Rudy’s phones; SCOTUS declines to review DC Circuit rejection of Trump’s Executive Privilege claims with respect to January 6 subpoenas

January 25, 2022: Lisa Monaco confirms DOJ is investigating fake electors plot

January 31, 2022: DOJ opens grand jury investigation

February 18, 2022: In civil cases, Judge Amit Mehta rules it plausible that Trump and militias conspired to obstruct vote certification, as well that he aided and abetted assaults and also that it is plausible Trump used incitement not protected by the First Amendment

March 2, 2022: Oath Keeper in charge of Stone security on January 6, Joshua James, enters into cooperation agreement

March 7, 2022: Carl Nichols first requires implication of documentary evidence for 18 USC 1512(c)(2)

March 28, 2022: Judge David Carter issues crime-fraud ruling covering John Eastman’s communications with and on behalf of Trump

April 13, 2022: After two month stall, FBI finally approves their side of investigation

Probable April 2022 (based on how long it took for filter protocols elsewhere): Warrant for Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer emails

April 2022: DOJ requests transcripts from J6C

May 2022: DOJ subpoenas all NARA records provided to J6C

May 26, 2022: Subpoenas for fake electors plot including Rudy, John Eastman, Boris Epshteyn, Bernie Kerik, and Jenna Ellis, among others; filter protocol for email accounts of Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer

June 6, 2022: DOJ charges Proud Boy leaders with seditious conspiracy

June 9, 2022: In Proud Boys hearing, prosecutors say they expect to get J6C transcripts in September

June 15, 2022: Subpoena to Marc Short and Greg Jacob; letter to J6C renewing request for transcripts

June 16, 2022: DOJ agrees to delay Proud Boys trial from August 9 to December 12 because of the transcripts

June 21, 2022: Second set of fake electors subpoenas, adding Mike Roman and others, warrants for NV GOP officials and GA official

June 22, 2022: DOJ searches Jeffrey Clark’s home and seizes his phone

June 23, 2022: DOJ completes exploitation (but not scoping) of Shroyer’s phone;

June 24, 2022: Ali Alexander grand jury appearance; Warrant approved for Clark Gmail account

June 27, 2022: Then Chief Judge Beryl Howell permits prosecutors to obtain emails between Scott Perry and Clark and Eastman

June 28, 2022: DOJ seizes John Eastman’s phone

July 22, 2022: Marc Short appears before grand jury

August 9, 2022: DOJ seizes Scott Perry’s phone

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 2022: Mark Meadows provides previously withheld PRA covered materials to NARA

Early September, 2022: Pre-election legal process includes seizure of Boris Epshteyn and Mike Roman’s phones, subpoenas to key aides including Dan Scavino, Bernie Kerik, Stephen Miller, Mark Meadows, subpoenas pertaining to Trump’s PAC spending

September 27, 2022: Howell approves sharing of memoir

October 13, 2022: Marc Short and Greg Jacob make second, privilege-waived grand jury appearance

November 18, 2022: Merrick Garland appoints Jack Smith

December 2, 2022: Pats Cipollone and Philbin make second, privilege-waived grand jury appearance

~December 7, 2022: J6C provides at least some transcripts to DOJ (which are turned over to Proud Boys the following day)

December 21, 2022: J6C publicly releases transcripts promised in September

December 2022: Rudy Giuliani subpoena asks for information on his payment

January 17, 2023: Warrant for Trump’s Xitter account

February 9, 2023: Mike Pence subpoenaed; Xitter complies with Trump warrant

February 23, 2023: DC Circuit hears Scott Perry’s challenge to order providing access to his phone content

March 9, 2023: Judge Kollar-Kotelly orders Peter Navarro to turn over PRA-covered contents from Proton Mail account

March 28, 2023: Chief Judge Jeb Boasberg rules Mike Pence must testify (though protects some areas on Speech and Debate grounds)

April 4, 2023: DC Circuit declines to stay Beryl Howell ruling ordering testimony from Mark Meadows and others

April 7, 2023: DC Circuit upholds 1512(c)(2)

April 27, 2023: Mike Pence testifies before grand jury

August 1, 2023: Jack Smith indicts Trump

December 1, 2023: DC Circuit issues Blassingame and Tanya Chutkan rules against Trump on immunity

December 11, 2023: Jack Smith asks SCOTUS to expedite appeal

December 13, 2023: SCOTUS grants cert to Fischer’s 1512(c)(2) appeal

December 19, 2023: Boasberg orders Perry to turn over non-Speech and Debate privileged comms

December 2023 to August 7, 2024: SCOTUS delays January 6 case

January 9, 2024: DC Circuit argument

February 6, 2024: DC Circuit Immunity decision

May 2024: Original trial date

June 28, 2024: SCOTUS narrows application of 18 USC 1512(c)(2)

July 1, 2024: SCOTUS immunity decision

August 7, 2024: Chutkan receives mandate from immunity decision

August 27, 2024: Jack Smith supersedes Trump to accommodate SCOTUS immunity and obstruction rulings

January 7, 2025: Jack Smith report

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The January 6 Report Is Substantially the Immunity Brief Reporters Ignored in October

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I want to say something about the structure of Jack Smith’s report. For his description of Trump’s alleged crimes, he includes a fairly high level narrative in the text, with detailed footnotes.

A great number of the footnotes — around 178 of them — cite to ECF 252.

ECF 252 is the immunity brief Jack Smith fought hard, over Trump’s objections, to submit in October. The footnotes often then cite the Special Counsel’s Bates stamp identifying that piece of evidence and include a short description of the source.

Take this footnote:

It sources this assertion in the report itself:

Under this plan, they would organize the people who would have served as Mr. Trump’s electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to sign and send to Washington false certifications claiming to be the legitimate electors. 39

It cites to the following language in the immunity brief:

So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly “dueling” slates to the state legislatures for consideration anew.

[snip]

Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.301 When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote.302

And this footnote in the immunity brief.

As advertised, the footnote links to the Appendix and (in this case) the actual fake elector certificates.

In other words, for the narrative sourced to ECF 252 (one part of the narrative not sourced to the immunity brief pertains to the riot itself), we’ve already gotten this material. We got it in October, before the election.

It got only passing coverage.

We got much of this report, in more detailed form, in October. Many of the people who claim releasing this report would have made a difference in the election didn’t read the immunity brief in October, much less make a big deal about it.

The structure is significant for a few more reasons. First, the footnotes in this report sometimes provide more description about what appears in the appendix. Second, for those (including state Attorneys General) who want the evidence from Smith’s prosecution, the place to go is Tanya Chutkan, because it’s all there in her docket, sealed.

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The Jack Smith Report

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Here’s the report.

Here’s the section on Insurrection — the only crime that would have disqualified Trump as President.

The Office considered, but ultimately opted against, bringing other charges. One potential charge was 18 U.S.C. § 2383, sometimes referred to as the Insurrection Act, which provides that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 18 U.S.C. § 2383. Section 2383 originated during the Civil War, as part of the Second Confiscation Act of 1862. See Act of July 17, 1862, ch. 195, § 2, Pub. L. No. 37-160, 12 Stat. 589,590.

[snip]

To establish a violation of Section 2383, the Office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an “insurrection against the authority of the United States or the laws thereof,” and then prove that Mr. Trump “incite[d]” or “assist[ed]” the insurrection, or “g[ave] aid or comfort thereto.” 18 U.S.C. § 2383

[snip]

The Office determined that there were reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court’s standard for “incitement” under Brandenburg v. Ohio, 395 U.S. 444,447 (1969) (holding that the First Amendment does not protect advocacy “directed to inciting or producing imminent lawless action and … likely to incite or produce such action”), particularly when the speech is viewed in the context of Mr. Trump’s lengthy and deceitful voter-fraud narrative that came before it. For example, the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay. But the Office did not develop direct evidence-such as an explicit admission or communication with co-conspirators-of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6. Therefore, in light of the other powerful charges available, and because the Office recognized that the Brandenburg standard is a rigorous one, see, e.g., NA.A.CF v. Claiborne Hardware Co., 458 U.S. 886, 902, 927-929 (1982) (speech delivered in “passionate atmosphere” that referenced “possibility that necks would be broken” and violators of boycott would be “disciplined” did not satisfy Brandenburg standard); Brandenburg, 395 U.S. at 446-447 (reversing conviction where Ku Klux Klan leader threatened “revengeance” for “suppression” of the white race), it concluded that pursuing an incitement to insurrection charge was unnecessary.

By comparison, the statutes that the Office did charge had been interpreted and analyzed in various contexts over many years. The Office had a solid basis for using Sections 3 71, 1512, and 241 to address the conduct presented in this case, and it concluded that introducing relatively untested legal theories surrounding Section 2383 would create unwarranted litigation risk.  Importantly, the charges the Office brought fully addressed Mr. Trump’s criminal conduct, and pursuing a charge under Section 23 83 would not have added to or otherwise strengthened the Office’s evidentiary presentation at trial. For all of these reasons, the Office elected not to pursue charges under Section 2383. 193

DOJ also released the Hunter Biden report, which attempts to prove the prosecution was not political but proves the opposite.

I’ll return to both later.

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Will Aileen Cannon Succeed at Suppressing Hunter Biden Dick Pic Sniffing?

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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.

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Lefty Pundits Absolve Their Own Failures on Holding Trump Accountable for His Coup

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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?

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