LOLGOP and I have done the final installment of our Ball of Threads podcast — focused on Kash Patel, who serves as kind of the alpha and omega of Trump’s grievance narrative.
The Senate is rushing to confirm Kash in days ahead, in spite of all the prevarication and conflicts we review in this video.
Listen on Spotify (transcripts available)
Listen on Apple (transcripts available)
Today, the Senate Judiciary Committee stalled the vote on Kash Patel’s nomination another week.
A bunch of Republicans are wailing that Democrats are afraid of something.
But it’s clear Chuck Grassley is.
A week ago, he released a bunch of documents he read in Kash Patel’s confirmation hearing. They show that DOJ first opened a grand jury to investigate the fake electors plot on January 31, 2022. But FBI delayed two months, from February 12, 2022, at which point they had a draft opening Electronic Communication, to April 13, when they finally approved it. (I’ve included those dates in this timeline.)
The documentation shows that on both the FBI and DOJ side, top executives approved the investigation, as required by DIOG.
Grassley claims blah blah blah it’s not clear what about politicization, based on his debunked claims about Tim Thibault (claims that Jim Jordan’s committee debunked).
Remember: Tim Thibault is one of the three FBI Agents who opened an investigation targeting Hillary Clinton and the Clinton Foundation during the 2016 election cycle, based substantially on Peter Schweizer’s book. That’s the guy the right wingers have spun up as a raging lefty. That’s the guy who was involved in stalling the investigation of Trump for two months.
But the reason Chuck Grassley is sharing this is … mostly hot air, to justify Pam Bondi’s witch hunts.
And also to justify refusing to find out what Kash Patel is covering up about his 2022 grand jury testimony. Chuck Grassley appears to be using his own misrepresentations of Tim Thibault’s role in all this to refuse to support any inquiry into Kash’s grand jury testimony, apparently claiming that the entire Jack Smith investigation — both prongs of which were predicated long before he was hired — was thereby tainted. In a letter following up on that, Sheldon Whitehouse, Cory Booker, and Adam Schiff (but no one else, up to and including Dick Durbin) urge Grassley to reconsider his refusal to demand Kash’s grand jury testimony.
We write to object to Kash Patel’s continued refusal to provide members of the Senate Judiciary Committee information essential to our consideration of his nomination to be Director of the Federal Bureau of Investigation. Mr. Patel has repeatedly refused to discuss the testimony he provided to a federal grand jury investigating Donald Trump’s unlawful retention of classified documents, as well as his invocation of his Fifth Amendment privilege against self-incrimination. We regret that you have rejected our efforts to inquire into the first-ever invocation of Fifth Amendment protection by a nominee seeking to lead the FBI.
Democrats are trying to figure out what Kash Patel believed, in October 2022, that he had criminal exposure in an Espionage Act investigation.
And Chuck Grassley wants to use the fact that the FBI stalled the January 6 investigation into Donald Trump for two months as an excuse to refuse that.
I have always said I think it likely Kash Patel will be confirmed. But that shouldn’t have made yesterday’s confirmation hearing pointless. Democrats did that on their own, though a combination of inadequate preparation and absence of leadership.
Dems tried to demonstrate Kash’s manifest lack of fitness for the job in three ways:
Kash dealt with the first line of attack — his incendiary comments on social media — by claiming that his comments were taken out of context.
The only time such claims made any sense, when he tried to spin his complaints about the January 6 response, should have led to detailed follow-up of all the ways his testimony conflicts with every other witness on January 6. Kash even, yesterday, doubled the number of National Guard he claims Trump authorized, a claim that is debunked by the testimony of multiple pro-Trump witnesses. And even if his claims were true (he blames and blamed Ryan McCarthy for the delay in Guard response on January 6) means that his own leadership was faulty. At the very least, committee Democrats should have asked whether he was implicated in Barry Loudermilk’s insinuation that the failure to deploy the Guard was contemptuous.
Similarly, when Kash disclaimed remembering far right podcast host Stew Peters and Dick Durbin noted that Kash had appeared on the show eight times, Durbin should have followed up and asked what kind of compromise such promiscuity could cause an FBI Director.
There were many questions about Kash’s role in promoting the January 6 choir — but in spite of a conflict with Adam Schiff over the meaning of “we,” no one ever got Kash explain who did do the rest (though Adam Schiff did state that Kash had done no due diligence before pushing the video).
This matters, because some of Kash’s buddies (including conspiracy theorist Julie Kelly) routinely make false claims about rioters, and finding the source of Kash’s false claims is important to his warped reality going forward.
But the entire thrust of these questions was hampered by the point I made here and here: they relied on a superficial understanding, based off press releases rather than court dockets, of who these people were.
Schiff asked Kash if he promoted a video showing assailants attacking FBI agents, would it make him unfit to be Director. Why not, then, focus directly on the gun that Barton Shively grabbed when probation officers showed up, precisely the kind of thing that has gotten FBI agents killed in recent years.
And if you want to persuade — or at least, embarrass — your Republican colleagues, why not make it clear that the violent rioters under discussion didn’t just attack cops, but they threatened to drag people like Chuck Grassley and Lindsey Graham through the streets? Kash didn’t just promote people who attacked cops, he promoted people who wanted to attack members of the Committee.
It’s on Kash’s invocation of the Fifth that I’m most upset, because Democrats may have forfeited the opportunity to make this a scandal going forward.
It started strongly enough. Cory Booker first raised it, and got Kash to claim he wanted his grand jury testimony released, after which Booker tried — but failed — to get Kash to elaborate on his testimony. Later, Schiff returned to the question and asked whether he supported getting both his grand jury transcripts and any mention of him in Volume Two, which led to what were probably Kash’s angriest looks of the hearing.
But after that, in the second round, a number of senators returned to the issue, mangling the grand jury standard by falsely saying that if Kash consents to the release of the transcript it can be released, and focusing primarily on the transcript and not the report (the latter of which made his eyes bug out when Schiff raised it).
This is the kind of thing you need to coordinate! This is the kind of thing where the actual grand jury rules matter! This is the kind of thing where the McGann precedent matters!
And this is the kind of thing that demanded a coordinated set of yes or no questions about Kash’s testimony, because yesterday’s hearing was the one opportunity Dems will ever have to force him to answer question about what he told the grand jury.
All the more so because, it appears, Dems haven’t done what they should have to make an issue of the report (I first described the import of it to this confirmation on January 13).
On Wednesday — literally the day before the hearing — Dems wrote a letter to Acting Attorney General James McHenry asking for the report. While the letter referenced Dick Durbin asking Pam Bondi about it buried on page 41 of her Questions for the Record, that question did not tie the request to the need to advise and consent on confirmations. Tuesday’s letter nevertheless pointed to that question to claim that Aileen Cannon should have known about it.
On January 23, 2025, the Committee issued a “Notice of Committee Nomination Hearing” for Mr. Patel, which is now scheduled for January 30, 2025. The Ranking Member of the Committee submitted on January 16, 2025, Questions for the Record (QFR) to Attorney General nominee Pamela Jo Bondi following her confirmation hearing, requesting that she commit to making Volume Two of the Special Counsel’s report available immediately for review to the Senate Judiciary Committee Chair, Ranking Member, or their designees.2
This formal request preceded an order issued several days later by a judge in the United States District Court for the Southern District of Florida that enjoined the Department from releasing or otherwise making available a redacted version of Volume Two of the Special Counsel’s report to the House and Senate Judiciary Committees. In the order, the judge erroneously stated that “[t]here 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,” despite the prior request which her order omits. The judge also concludes wrongly that the Department “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,” notwithstanding the Committee’s ongoing consideration of Mr. Patel and others’ nominations.3
2 Senate Judiciary Committee, Questions for the Record the Honorable Pamela Jo Bondi Nominee to be Attorney General of the United States, (Jan. 16, 2025), https://www.judiciary.senate.gov/imo/media/doc/2025-01-15_- _qfr_responses_-_bondi.pdf
3 United States v. Trump, No. 9:23-cr-80101, (S.D. Fla. Jan. 21, 2025) ECF No. 714 at 7; In addition, on January 13, 2025, Senator Dick Durbin, Ranking Member of the Senate Judiciary Committee and the other Democratic members of the Committee submitted a letter to then-Attorney General Merrick Garland “recogniz[ing[ the current injunction against the release of Special Counsel Smith’s report and related materials and reserv[ing] its right to request production of the report and relevant records at an appropriate future date.” Senate Judiciary Committee Letter Requesting Preservation of DOJ documents (Jan. 13, 2025), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20DOJ%20on%20Records%20Preservation.pdf
This falls short of informing Cannon, however, and submitting an urgent request for the report in conjunction with this confirmation the day before the hearing is rather late, particularly since Grassley might try to push through the confirmation before the stated due date for the report, February 10 (which is still before Cannon’s injunction runs out).
Given Kash’s glare, I’m pretty confident that the report will suggest Kash prevaricated before the grand jury. I even suspect we’ll eventually get some semblance of the report (I also think DOJ’s efforts to fire everyone who might have a copy, on Friday, before they moved to dismiss the case against Walt Nauta and Carlos De Oliveira, on Monday, while a transparent attempt to prevent its release, may be inadequate to that effort).
I think that if the report comes out, it will become clear that the delay in releasing it served primarily to preserve Kash’s nomination chances. I think that it’s likely not to happen before he is confirmed, but I think if that happens after Kash’s confirmation, it can be made a key demonstration of the corruption inherent to Trump’s DOJ.
But Democrats have not done the things they needed to do to to make that a scandal.
Trump’s DOJ is involved in a cover-up as we speak, a cover-up designed to hide how the aspiring FBI Director was complicit in Trump’s efforts to retain classified documents in his insecure basement. But Democrats have not done what they need to do to impose a cost for that cover-up.
Cory Booker was perhaps the bright spot of the day. In addition to first raising Kash’s role in the documents investigation, he got Kash to disclaim knowledge of a purge in process, in which at least six senior FBI agents were pushed out, during the hearing.
This is another thing that may be turned into a scandal going forward.
As this post makes clear, most of these Senators are quite proud of their testy confrontations with Kash. They’ve sent them out individually.
It’s not too late to make use of them. Democrats can and should put together three videos focused on each of these topics. Intersperse Kash’s claim to stand by cops with video of those he celebrated attacking them. Intersperse Kash’s disavowal of the Neo-Nazis he has been sidling up to with what he said on their shows. And make a video of all the times Kash claimed to want to release his testimony with a focus on the effort to cover it up.
Kash Patel is almost certainly going to be confirmed. And he will almost certainly be a catastrophic appointee. So Dems need to do far more than they did yesterday to impose a cost going forward on his pick — one that, especially, will make it easier to demonstrate the corruption of his installation.
I expect Kash Patel will be confirmed; I even expect that Democrats on the Senate Judiciary Committee will be utterly feckless in Kash’s confirmation hearing tomorrow.
Nevertheless I wanted to summarize his disqualifications.
Kash got where he is by substituting the Steele dossier for the real Russian investigation, which was instrumental in Trump’s success at minimizing the damage of one after another Trump associate lying about what really happened in 2016.
Kash gets a lot of credit for the Nunes Memo, with many right wingers claiming that the Horowitz Report vindicated it.
It didn’t. As I showed, both the Nunes Memo and the Schiff Memo got things right and got things wrong; mostly they just spoke past each other, which was fundamentally based on that substitution of the Steele dossier for the real Russian investigation.
Nevertheless, one of Kash’s lasting gripes (against Robert Hur) has to do with efforts to limit how much Kash was releasing at the time.
Kash did more than that as a House staffer, though. He continued to chase his conspiracy theories as Congress turned to criminalizing Hillary Clinton. He’s actually the staffer who asked the question that set up Michael Sussmann for a failed prosecution years later. He set up what would later become the Durham investigation — a four year effort to criminalize being victimized by a hostile nation-state.
And then, after Durham filed a wildly misleading court filing misrepresenting the discovery by some Georgia Tech researchers that someone was using a YotaPhone inside the Executive Office of the Presidency during the Obama term, Kash sent out a letter outright lying about the claims.
The whole thing is riddled with lies, but ultimately it amounts to a conflation of the Obama-era discovery with the discovery of the ties between a marketing server, Alfa Bank, and a Spectrum Health server. Kash’s letter was the final step before Trump jumped on the lies and called for Sussmann’s execution. Kash is a key cog in the way Trump has elicited threats against others.
Kash also paid a lot of former FBI agents who were disgruntled about having to investigate Trump supporters.
And when news of the discovery that boxes of documents that Trump had returned had classified documents in them, Kash invented a claim that Trump had declassified all those documents.
At least one Jack Smith witness — someone with the potty mouth of Eric Herschmann — disputes any claim there was a standing order to declassify documents. That witness described 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.
Jack Smith described what happened next. When investigators subpoenaed Kash to test his claims that Trump had this standing order, Kash tried to delay compliance indefinitely by hiring a lawyer already busy defending a January 6 seditionist. When the aspiring FBI Director did first testify, Kash 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]
Aileen Cannon has buried any description of what Kash said when compelled to testify. This nomination should be held until any discussion of Patel in the Jack Smith report is released (but thus far Dick Durbin has shown no interest in doing so; DOJ just dropped their appeal).
But it should never be passed, because Kash is a menace. In his repeated efforts to falsely claim that January 6 defendants were treated any worse than any other mostly-violent pretrial detainees during the COVID period, he suggested that the people detained for assaulting cops were being mistreated.
As I have shown (and Bulwark did before me) Kash’s cheerleading for January 6 defendants amounts to arguing that someone accused of assaulting cops who grabs a gun when his probation officers show up should not then be jailed, nor should someone who directly threatened members of Congress, called on a mob to grab their weapons, and then assaulted cops.
Kash Patel will do and say anything to protect Trump and his flunkies — up to and including risking the safety of members of Congress.
Such a person would not serve as Director of FBI. He would serve as a means to turn government against Trump’s adversaries.
When Kash Patel boosted the J6 Choir claiming the video of those housed in DC Jail in March 2023 was proof of a two-tier system of justice, he was suggesting that someone who brought a crowbar — which he called a “weapon” — to the Capitol while promising to drag members of Congress through the streets, then assaulted cops protecting Congress, should not be detained while awaiting trial for assaulting cops.
That’s the significance of Ryan Nichols’ inclusion in the footnote Jack Smith put in his report, listing the identities of some of the J6 Choir members Trump had endorsed.
Nichols was in jail because of the threats he posed to members of Congress.
I’m hearing that Pence just caved. I’m hearing reports that Pence caved. I’m telling you if Pence caved, we’re gonna drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets. Because we’re not going to have our fucking shit stolen. We’re not going to have our election or our country stolen. If we find out you politicians voted for it, we’re going to drag your fucking ass through the streets. Because it’s the second fucking revolution and we’re fucking done. I’m telling you right now, Ryan Nichols said it. If you voted for fucking treason, we’re going to drag your fucking ass through the streets. So let us find out, let the patriots find out that you fucking treasoned this country. We’re gonna drag your fucking ass through the street. You think we’re here for no reason? You think we patriots are here for no reason? You think we came just to fucking watch you run over us? No. You want to take it from us, motherfucker we’ll take it back from you.
And even then, he didn’t remain in prison for the period before he pled guilty.
Nichols challenged his treatment in the DC jail, complaining about the seizure of his discovery and claiming that his incarceration was exacerbating his known PTSD diagnosis. He was further involved in an altercation in September 2022, after which he was segregated, then moved to another facility. He had repeated diagnosis issues with his health care. So in November 2022, Judge Thomas Hogan released Nichols from custody, and he remained out until he pled guilty on November 7, 2023.
But ultimately, Reagan appointee Royce Lamberth sentenced Nichols to what would have been three more years in prison — a total of 63 months and (because Nichols refused to cooperate with Probation on his finances) a record $200,000 fine, one the pardon will presumably wipe away entirely.
Nichols blamed his untreated PTSD for his actions. But Nichols’ sentencing memo revealed a 2019 arrest for assault causing bodily harm that resulted in diversion, one that belies his defense attorney claim he had never been violent before January 6. And prosecutors’ sentencing memo raised all the conspiracy claims Nichols made — many of the same claims that Kash Patel has made about him and others — raising some question about his remorse for his actions.
In addition, although Nichols “agreed with the conduct described in the Statement of Offense” in his presentence interview, PSR ¶ 50, in a post circulated after the plea hearing, members of Nichols’ defense team refers to him as a “political prisoner.” Exhibit J (Substack blog post authored by defense team law clerk present at counsel table for the plea hearing titled “Ryan Nichols: Political Prisoner Of His Own Country”); see also Exhibit K (GiveSendGo page titled “Free My Patriot Prisoner” with messages attributed to Nichols, his wife, and his father prior to the defendant’s plea). Even prior to Nichols entering his plea, his attorney was tweeting statements that directly contradicted the statement of offense in this case. See Exhibit M (October 30, 2023, twitter post from Nichols’ lead counsel).12 These statements threaten “public trust in the rule of law and the criminal justice system [, which] is paramount in the context of January 6 cases.” United States v. Nester, 22-cr-183 (TSC), ECF No. 113 at 6 (internal citation omitted). While the government does not attribute counsel’s statements to the defendant himself (nor does it base its recommendation on such bombastic rhetoric), this Court must appropriately assess whether the defendant has independently accepted responsibility for his criminal conduct. Pleading guilty is not simply the same as accepting the consequences and showcasing remorse under these trying and unique circumstances.
12 The government also notes that, in the months leading up to his plea, Nichols was claiming in public court filings that, in effect, “shadowy teams of plainclothes government agents orchestrated the attack [on the Capitol], leaving a far larger number of innocent Americans to take the fall.” ECF 266 (Order Denying Defendant’s Motion for Disclosure) at 13; see also ECF 244 (Motion for Disclosure), 245 (Supp. Motion for Disclosure), and ECF 251 (Reply to Government’s Opposition to Motion for Disclosure)
The sentence Judge Lamberth imposed in May 2022, 63 months, was about 75% of the government ask of 83 months. While Nichols had a lot of heartfelt things to say about his actions, Judge Lamberth noted that Jan6ers had repeatedly reneged on their statements of remorse, which the recent statements laid out in the government sentencing motion addressed.
Importantly, Nichols himself noted that the solitary confinement to which he was subjected was a COVID protocol, not anything specifically targeting Jan6ers.
I spent months in solitary confinement for 23 to 32-plus hours at a time due to COVID protocols, only allowed out for one hour to shower or make a phone call just to be locked in that 10-by-7-foot cell for another 23 to 32-plus hours at a time. Mental torture is an understatement. I heard grown men screaming and crying out for their mothers, me included. Many nights, I cried myself to sleep. With no court dates, no discovery, and no ending in sight, I felt hopeless and my mental health spiraled out of control. Eventually, I decided that, maybe, I needed to seek professional help. I put in a mental health request, and two weeks later I was back on Zoloft. Though this certainly helped control my mind and get my emotional imbalance in alignment, the solitary confinement was still overwhelming.
And he expressed empathy with the incarceration of people of color.
Your Honor, I know, after almost two-and-a-half years of incarceration, how terrible jail and prison is. The entire atmosphere is violent, dark, and unforgiving. For the majority of my life, I’ve heard, but never been able to empathize with, people of color when they testified to the harsh environment and treatment within the jail and the prison system. Make no mistake, I am now a witness to their testimony. Being in jail and prison is a living hell of eternal separation from the light. Sometimes it feels like not even God himself can penetrate those walls.
Nichols’ PTSD and other maladies did make incarceration onerous. The DC jail treated him just as shitty as it treats everyone else. And he was released because of it.
But that’s not a proof of a two-tier system of justice. That’s proof that America’s prisons suck, and that Jan6ers had more success in using that to get released than others.
Ultimately, though, Patel is claiming that one can get in your truck with guns in the back, drive to DC, threaten to drag people like Lindsey Graham and Chuck Grassley through the streets because they certified Joe Biden’s win, spray cops with toxic chemicals, and then call on the mob to grab more weapons to break into the Capitol, and not be assigned to pre-trial detention. That’s what Nichols did: He directly threatened Senators, both Republicans and Democrats. The notion that Nichols was improperly detained suggests one can assault cops after threatening the members of Congress they’re protecting with impunity.
And that’s what the aspiring FBI Director has said: that people can threaten to assault the very people who are rushing to confirm him with impunity.
The press continues to largely ignore the work that Jack Smith did, including the footnote in his report where he noted Trump’s support for the Jan6 choir by listing the detention memos for a number of them.
As he did in his 4:17 p.m. and 6:01 p.m. Tweets on January 6, Mr. Trump has provided additional evidence of his intent by continuing to support and ally himself with the people who attacked the Capitol. He has called them “patriots” 135 and “hostaoes ” 136 reminisced about b ‘ January 6 as a “beautiful day,” 137 and championed the “January 6 Choir,” 138 a group of January 6 defendants who, because of their dangerousness, are detained at the District of Columbia jail. 139
139 See United States v. Nichols, No. 21-mj-29, ECF No. 9 (E.D. Tex. Jan. 25, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the “January 6 choir”); United States v. Nichols, No. 2 l-cr117, ECF No. 75 (D.D.C. Dec. 23, 2021) (denying defendant’s motion for pretrial release); id, ECF No. 307 at 27 n. IO, 35-36 (D.D.C. Apr. 30, 2024) (government sentencing memorandum referencing defendant’s involvement in “January 6 choir”); see also United States v. Mink, No. 21-mj-105, ECF No. 19 (W.D. Pa. Jan. 29, 2021) (in prosecution of defendant who later became a member of the “January 6 choir,” ordering defendant’s pretrial detention); United States v. 1vfink, No. 21-cr-25, ECF No. 45 (D.D.C. Dec. 13, 2021) (court order denying defendant’s motion to revoke pretrial detention); United States v. Sandlin, No. 21-mj-110, ECF No. 8 (D. Nev. Feb. 3, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the “January 6 choir”); United States v. Sandlin, No. 2 l-cr-88, ECF No. 31 (D.D.C. Apr. 13, 2021) (denying defendant’s motion for release on bond); id., ECF Nos. 44, 44-1 (D.D.C. Aug. 31, 2021) (mandate return following denial of defendant’s appeal of pretrial detention order); United States v. Shively, No. 21-cr-151, ECF No. 42 (D.D.C. May 9, 2022) (in prosecution of defendant who later became a member of the “January 6 choir,” revoking conditions of release and ordering pretrial detention); United States v. Khater, No. 21-cr-222, ECF No. 25 (D.D.C. May 12, 2021) (in prosecution of defendant who later became a member of the “January 6 choir,” denying defendant’s motion for release from custody); United States v. McGrew, No. 21-cr-398, ECF No. 40 (D.D.C. Nov. 2, 2021) (order of detention pending trial in prosecution of defendant who later became a member of the “January 6 choir”).
Bulwark is one laudable exception. In advance of his confirmation hearing, they did a post using the footnote to focus on Kash Patel’s role in boosting the video. They quote Patel saying, over and over, that the video represents how he boosted the video to “destroy the two-tier system of justice” seemingly applied to Jan6ers.
PATEL DISCUSSED HIS KEY ROLE in producing and promoting the J6 Prison Choir during a March 10, 2023 appearance on Steve Bannon’s War Room podcast. Patel announced that he was “exclusively” releasing for “the first time ever” the video for the choir’s song “Justice for All.”
“We all know the plight of the Jan. 6 prisoners and their families and how due process has been destroyed for so many of them,” Patel told Bannon. He then explained how he and others helped produce the song.
“We also know, or some of us know, that they sing, the Jan. 6 prisoners themselves sing, the national anthem every night for 700 straight plus nights from the jail themselves,” Patel said. He and others thought it “would be cool” if “we captured that audio” and mixed it with “the greatest president, President Donald J. Trump,” reciting the Pledge of Allegiance. “Then we went to a studio and recorded it, mastered it, and digitized it, and put it out as a song,” Patel added.
[snip]
As he went on to promote the song in the weeks that followed, Patel portrayed the J6 Prison Choir as victims of the U.S. justice system. “[‘Justice for All’] was a collaboration between like-minded Americans who wanted to keep the focus on helping to destroy the two-tier system of justice that is rotting America,” Gateway Pundit quoted Patel as saying in a March 21, 2023 post. Patel added that the “net profits” would be used “to financially assist as many Jan. 6 families as we can, and all families of nonviolent offenders will be considered.” (This raises a question: Given that the choir’s members included violent offenders, did any of them, or their families, receive any of the proceeds?)
That said, they relied only on press releases to describe those included in Jack Smith’s footnotes, not the dockets themselves (or better yet, video). I want to focus on a few of the cases to show what the aspiring FBI Director thinks constitutes a two-tier system of justice.
I want to start with one of the least obnoxious people who was in the DC Jail in March 2023, Barton Shively (CourtListener docket). A former Marine, he was originally arrested on January 19, 2021 for assaulting two cops; he would eventually plead guilty to striking one officer’s “hand, head and shoulder areas,” and grabbing another and yelling at him.
But like most others accused of assaulting cops with his own hands (as opposed to a weapon), he wasn’t jailed right away. He was released to home detention, and several times got revisions to his release condition (for example) to make sure he could continue to work and, in May 2022, so he could get treatment for newly diagnosed Hodgkins.
That changed in May 2022, when probation officers showed up and found him with a shotgun and a sword.
On or about May 4, 2022, U.S. probation officers from the Middle District of Pennsylvania conducted an unannounced home visit and found a shotgun, ammunition, knives, and a sword in the defendant’s residence. See Image 10 below. Significantly, the “butt” of that shotgun had a cloth sleeve which stated, “THREE PERCENTERS.”5 Given the nature and seriousness of the violations of his release conditions and his displayed lack of candor, both D.C. Pretrial Service Agency and the U.S. Probation Office for the Middle District of Pennsylvania, inter alia, requested the defendant be removed from all pretrial supervision programs. Based on that report, this Court ordered that a show-cause hearing be scheduled for May 9, 2022. On May 9, 2022, after a hearing regarding the violations, this Court ultimately revoked his Release Conditions and detained Shively until sentencing in this matter. See Court’s Order ECF #42.
At his detention hearing, the probation officers claimed that Shively “reached for a shotgun, prompting one USPO to draw his weapon.”
That’s what led him to be jailed: not the original assault on the cops, but that he allegedly grabbed for a gun when probation officers found he had one that his release conditions prohibited him from even having.
That’s what Kash Patel claims is a two-tier system of justice, that after a guy accused of assault allegedly grabbed for a gun when his probation officers found it, he was detained.
Importantly, on intake, Judge Kollar-Kotelly made sure he would be assessed for the best medical treatment, for which his attorney later expressed appreciation for the “Court’s mindfulness of his medical situation.”
Shively remained in the DC Jail in March 2023 because his attorney asked for — and ultimately got — Kollar-Kotelly to recuse from the case because she had learned, ex parte, of an altercation at the jail in 2022, which led to a delay in his sentencing from February to June 2023.
In the end, in June 2023, Judge Jia Cobb sentenced Shively to 18 months for the assault, less than the 27 months even his attorney suggested.
Apparently, the aspiring FBI Director thinks that men out on pre-trial release should be able to grab a gun they’re prohibited from having when federal probation officers arrive and not get detained.
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:
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.
I’m a bit baffled by the status of Aileen Cannon’s Calvinball to keep both volumes of the Jack Smith report buried (I thought her three day stay was up, but I must be wrong). But I fully expect she’ll find some basis to bigfoot her way into DOJ’s inherent authority again by the end of the day.
But this week, the result of her bigfooting poses new Constitutional problems. She is interfering with Chuck Grassley and Dick Durbin’s constitutional duty to advise and consent to Donald Trump’s nominees.
It’s not just me saying it. In the letter to Merrick Garland signed by aspiring Deputy Attorney General Todd Blanche and PADAG designee Emil Bove (whom WaPo says will serve as Acting DAG until Blanche is confirmed), complaining about the report, they state explicitly that release of the report would “interfere with upcoming confirmation hearings” (and, apparently, reveal damning new details about DOGE [sic] head Elon Musk’s efforts to interfere in a criminal investigation).
Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.
This is premised on Smith’s report being biased.
Except what Cannon is suppressing consists of sworn testimony from some of Trump’s closest advisors. The damning testimony I keep raising, seemingly debunking Kash Patel’s claim (cited in search warrant affidavits) that Trump had “declassified everything” he took home with him almost certainly comes from Eric Herschmann, installed in the White House by Trump’s son-in-law Jared Kushner.
This witness names at least two other people who, he claimed, would corroborate his claim that Kash’s claims were false.
Another witness described that Kash visited Trump at Mar-a-Lago before he made his claim in Breitbart.
Most importantly, Kash himself provided compelled testimony to a grand jury, represented by Stan Woodward, who not only has been named as Senior Counselor in Trump’s White House, but who (in the guise of Walt Nauta’s attorney), remains on filings fighting to suppress the release of information that could harm Kash’s bid to be FBI Director.
Do Trump’s intended DOJ leadership think Kash’s own sworn testimony is unreliable?
Did Kash renege on his public claims that Trump declassified everything?
Or did he provide testimony that conflicts with that of multiple witnesses, in which case Jack Smith might have had to explain they would have charged Kash with obstruction, too, except that he testified with immunity.
Kash’s testimony (and that of the witness who appears to be Eric Herschmann) precedes the date of Jack Smith’s appointment. It cannot be covered by Aileen Cannon’s ruling that everything that happened after that was unconstitutional.
Trump’s nominee for FBI Director gave sworn testimony in an investigation into a violation of the Espionage Act. That testimony is almost certainly covered in Volume II of the Jack Smith report. Merrick Garland has described that he would allow Chuck Grassley and Dick Durbin (along with Jim Jordan and Jamie Raskin) to review the document — which is imperative for the ranking members of SJC to perform their duty to advise and consent to Trump’s appointments.
And Aileen Cannon has, thus far, said that Grassley and Durbin can’t do their job. They can’t consider Kash Patel’s conduct in an Espionage Act investigation in their review of Kash’s suitability to be FBI Director. The ranking members of the Senate Armed Services Committee have reviewed Pete Hegseth’s FBI background check, but Grassley and Durbin have been deprived of the ability to read about Kash Patel’s role in a criminal investigation into hoarding classified documents.
Durbin may well have standing to complain about Cannon’s interference in his constitutional duties. It’s high time he considered making the cost of Cannon’s interference clear.
Update: Steve Vladeck explains how I miscounted three “days:”
Under Federal Rule of Civil Procedure 6(a)(1)(C), when a court order gives a time period in days, we “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In other words, Cannon’s injunction, if it’s not modified, will expire (clearing the way for the public release of the January 6 volume) at the end of the day, today (and not, as many assumed, yesterday).
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.
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.
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.
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.